Madras High Court
Sandymarie Chantalle vs Marie Louise Damendy on 22 April, 2010
Author: C.S.Karnan
Bench: C.S.Karnan
BEFORE THE HIGH COURT OF JUDICATURE AT MADRAS
DATE : 22.04.2010
CORAM
THE HONOURABLE MR.JUSTICE C.S.KARNAN
CRP(NPD).No.1781 of 2008
and
M.P.No.1 of 2008
Sandymarie Chantalle .. Petitioner
Vs.
Marie Louise Damendy .. Respondent
Prayer:- This Revision petition is filed under Section 25 of Pondicherry Buildings (Lease and Rent Control) Act, 1969, against the order dated 18.03.2008 passed by the Principal District Court in R.C.A.No.15 of 2007, concurring Judgment dated 24.01.2007 passed by the Principal District Munsif-cum-Rent Controller, Puducherry in H.R.C.O.P.No.36 of 2004.
For Petitioner : Mr.K.N.Nataraj
For Respondent : Mr.D.Naveen Duraibaby
O R D E R
The civil revision petitioner herein is the respondent/tenant in H.R.C.O.P.No.36 of 2004, on the file of the Rent Controller/Principal District Munsif Court at Pondicherry and the appellant in R.C.A.No.15 of 2007, on the file of the Principal District Court, Pondicherry. The revision petitioner has filed the R.C.A.No.15 of 2007 to set aside the order of the Rent Controller, District Munsif Court, Pondicherry, with respect to the order of the eviction on the ground of demolition and reconstruction. The same was dismissed by the Rent Control Appellate Authority/Principal District Judge, Pondicherry.
2.Aggreived by the said Judgment and Decree of the Rent Control appellate authority passed in R.C.A.No.15 of 2007, dated 18.03.2008, this Civil Revision Petition has been filed.
3.The short facts of the case are as follows:
The respondent/landlord has filed H.R.C.O.P.No.36 of 2004 against the revision petitioner/tenant for delivery of vacant possession of the schedule mentioned property viz. A brick built building situated at No.79, Jawaharlal Nehru Street, Pondicherry-1, within the limits of Pondicherry Commune and Pondicherry municipality. The respondent is the owner and the landlord of the property, well described in the schedule of the petition. The revision petitioner is the tenant in the non-residential building and was paying a rent of Rs.900/- for every English calendar month. The respondent is running a tailoring business under the name and style of 'M/s.Vijayam Tailoring Mart' in the said non-residential building. The revision petitioner has been a tenant for the past eight years. The respondent/landlord has a married daughter named Padmavathy. Even though, she is married, she stays with the landlord due to family circumstances. The said Padmavathy is a graduate in Astrology and she has now been appointed as Branch Manager of Karthika Astrological Training Centre for Pondicherry. In spite of this, the said Padmavathy and her husband do not have sufficient income to meet their expenses. So, the landlord wants to establish a separate business namely Browsing Centre, Fax, Std etc., in the petition premises to assist her daughter.
4.The scheduled mentioned property is only a part of the building bearing Nos.77 and 79 at Jawaharlal Nehru Street, Pondicherry. The entire building bearing No.77 is in a dilapidated condition and is unsafe for occupation. The building is more than 83 years old, constructed with mud and mortar. The building originally had a tiled roof. In the year 2004, the revision petitioner/tenant removed the tiles and put up cement sheets to cover the roof, tearing that the roof may collapse. Hence, the respondent/landlord wants to demolish and reconstruct the building for her daughter's business for which she had received a plan of approval from the Pondicherry planning authority to put up construction in the place of buildings bearing Nos.77 and 79, Jawaharlal Nehru Street, Pondicherry. The landlord has sufficient funds to carry out demolition and reconstruction of the said building. Hence, the landlord has filed the eviction petition under Section 10(3)(a)(iii) and 14(1)(b) of the Pondicherry Buildings (Lease and Rent Control) Act, 1969, against the revision petitioner/tenant for delivery of vacant possession of the petition premises.
5.The revision petitioner/tenant has admitted the tenancyship. But he does not admit that he is running a tailor shop in the said premises. On the contrary, he is a dealer in leather goods under the name and style of 'M/s.Bontique Vijayan'. Initially, the landlord's father-in-law was running a tailor shop from the year 1968. Thereafter, the revision petitioner's husband took over the business and continued to be a tenant. Subsequently, the revision petitioner has taken over the business and continued her tenancy. In the month of February 2003, she changed her business to one dealing in leather goods. The landlord refused to issue rental receipts for the monthly rents paid from the month of December 2002 onwards, for which the tenant issued legal notice to the landlord, on 10.03.2004. Subsequently, the above H.R.C.O.P.No.30 of 2004 was instituted by the landlord. The respondent further contended in her counter statement that she is not aware about the age, income, occupation and marital status of the daughter of the landlady. The entire building area is an extent of 2500 sq.ft., Out of which, the respondent occupies an area of only 120 sq.ft., (8 Feet X 15 Feet). The landlady owns many other properties in Pondicherry and other places. The respondent has denied that she had removed the tiles and had replaced it with cement sheets in the year 2004. The respondent further contended that the building is not in a dilapidated condition as alleged but in a fit condition suitable for occupation. The landlady's claim is not a bonafide one, but her intention is to evict the tenant and put another tenant with a view to get high rent. The respondent further submits that if the petitioner's intention was to reconstruct the building, she could have represented it and could have assured to re-allot a portion of the building, after construction. As the building area is 2,500 sq.ft., it would not have been difficult for her to re-allot a portion to the respondent. Hence, the eviction petition is not maintainable. It has been stated that the same has been filed against the respondent with malafide intention to evict the tenant.
6.Supporting the eviction petition, the landlady had filed proof of affidavit along with nine documents to establish her case, namely Ex.A1-copy of the Legal Notice dated 21.03.2004, Ex.A2-Postal acknowledgement card, Ex.A3-Reply notice dated 07.03.2004, Ex.A4-Approval of plan dated 16.06.1995, Ex.A5-Permit for construction dated 16.06.1998, Ex.A6-Loan sanction order dated 09.05.2003, Ex.A7-Appointment Order dated 19.04.2003, Ex.A8-Renewal of the plan approval dated 21.10.2004 and Ex.A9-Renewal of loan sanction order dated 17.11.2004.
7.The respondent/tenant has filed an affidavit in her name for chief-examination. Supporting her contention, she has filed four documents namely Ex.R1-Office copy of notice dated 10.03.2004, Ex.R2-Certified copy of the acknowledgement card; Ex.R3-certified copy of endorsement made by parties in H.R.C.O.P.No.30 of 2004 and Ex.R4-certified copy of Order dated 07.10.2004 in H.R.C.O.P.No.30 of 2004.
8.After considering the contention of the landlady in her petition, counter statement thereof filed by the tenant, after examination of affidavit of both the parties and documentary evidence produced by either parties, the Tribunal had framed three issues for consideration namely:
(i) Whether the petitioner is entitled for eviction on the ground of demolition and re-construction?
(ii) Whether the petitioner is entitled for eviction on the ground of requirement for own use and occupation?
(iii)To what relief?
9.The learned Rent Controller at Puducherry has passed an order as follows:
"6.POINT NO.1:
Petition is filed for eviction on the ground of demolition and reconstruction and requirement of the premises for own use and occupation.
7. Petitioner is the landlady and respondent is the tenant on payment of Rs.900/- as rent wherein she is running a tailoring business in the name and style of M/s.Boutique Vijayan. Petitioner's daughter Mrs.Padmavathy is staying with her due to family circumstances. She is graduate in Astrology and she has now been appointed as Branch Manager of Karthika Astrological Training Centre, Dharmapuram, Erode. Petitioner's daughter requires the petition premises to establish her branch office of Karthika Astrological Centre at Pondicherry and an internet, Fax, E-mail, STD booth to augment income. The entire premises is in a dilapidated condition and requires immediate demolition. Petitioner has got sufficient money for the same. She has obtained necessary sanction from the Planning authorities. Hence this petition is filed.
8. Respondent has filed a counter denying the petition allegations. Respondent contended that she is carrying on leather goods business with the knowledge and consent of the petitioner. Petitioner is not in the habit of issuing receipts and hence the respondent was forced to file R.C.O.P.30/2004. Respondent has established her business. Petitioner owns several other premises in Pondicherry. Petitioner does not possess sufficient funds for demolition and reconstruction. The requirement of petitioner is not bonafide and hence this petition is liable to be dismissed.
9. Demolition and Reconstruction:
Tenancy and quantum of rent is not disputed. Petitioner contended that the respondent is carrying on a tailoring business and respondent contended that she is carrying on leather goods business with the consent of the landlady.
10. To maintain a petition under section 14(1)(b), the landlady should satisfy three conditions viz.,
1.Bonafide intention, far from sole object to get rid of tenants,
2.the age and condition of the building and
3.the financial position to demolish and reconstruct Before considering whether the petitioner has satisfied the above ingredients, it is necessary to notice that the respondent has pointed out, that the petitioner has not given the necessary undertaking for demolition and reconstruction. Petitioner has not produced the estimate for the cost of construction, he has not examined the engineer and sanction plan is not enclosed. Admittedly the petition does not contain the necessary undertaking for demolition and reconstruction. At the same time in the chief affidavit petitioner has given the necessary undertaking. In 1989 (1) LW 228 @ 231, the Honourable High Court has held, that the undertaking given by the landlady in the deposition is sufficient for satisfying the requirement under section 14(2)(b).
11. In 89 LW 585 it was held that undertaking given by the petitioner subsequent to the eviction order passed by the Rent Controller giving them an weeks time to file such an undertaking can be taken as a sufficient compliance with the provisions of section 14(2)(b).
12. It is needless to say that in the instant case the undertaking given in the deposition by the petitioners is sufficient. Hence, the failure to give undertaking is not fatal to the case of the petition.
13. With respect to the ingredients under 14(1) (b), petitioner contended that the petition premises is a portion of an entire building. Petition premises is at door No.79, Jawaharlal Nehru Street, Pondicherry. Petition premises is 83 years old and is constructed with mud mortar. Initially the building had tiled roofing and the same was replaced with sheets in January 2004. Petitioner contended that the building is in a dilapidated condition and that is requires immediate demolition. Nothing is suggested to PW1 regarding age and condition of the building. Nothing is spoken by Rw1 in this regard.
14. With respect to the financial status of the petitioner, respondent contended that petitioner does not have the necessary fund and capacity to raise funds. Under Ex.P6 petitioner has produced a letter from the Indian Overseas Bank, Reddiarpalayam Branch, whereby sanction is extended for obtaining loan for construction. It is needless to say that now-a-days banking sectors are freely accessible for getting loans across the table. Hence the contention that petitioner cannot raise fund cannot be accepted.
15. Petitioner has produced the sanction from the planning authority for reconstruction obtained on 21.10.2004 and the same is marked as Ex.P5. The sanctioned plan is marked as Ex.P4. The learned counsel for the respondent contended that the sanctioned plan for Ex.P5 is not produced. As already stated Ex.P4, the sanctioned plan was obtained on 16.06.1998. Subsequently the plan was not renewed. It is a matter of common knowledge that Rent Control Proceedings take several years till a final decision is reached. A plan has to be obtained, renewed or re-obtained depending on the nature of pendency of proceedings. Hence as a rigid rule it is not possible to state that without a renewed sanctioned plan it is not possible to prove bonafides. In 1992(1) LW 190 similar was observed and it was held that non-marking of the sanctioned plan cannot be said to be fatal to the landlady. Hence, in the instant case, the above objection by the tenant cannot be sustained.
16. The next objection that was raised by the respondent is that the petitioner has not produced the estimate for cost of construction and that he has failed to examine the engineer. It is needless to say that section 14(1)(b) does not insist that the landlady should produce the estimate to establish his bonafides. Bonafides is a question of degrees. It has to be assessed with reference to the circumstances and facts of each particular case and in the context and frame work of the situation prevailing at that time. As already stated when the banking sector is ready to give loan freely, the non-production of estimate is not mandatory and is not fatal to the case of the petitioner.
17. Similarly in 1996 (2) CTC 105 it was held that non-examination of engineer is not fatal to the case of the landlady. Hence these two objections also cannot be sustained. Further, as already stated, petition premises is a portion of a larger building. The adjacent tenant in the same building is running a photo studio at No.77, Jawaharlal Nehru Street against whom RCOP 37/2004 was filed wherein the tenant has agreed to vacate the premises also and eviction order is also passed.
18. Considering the totally of the circumstances, petitioner has applied for bank loan, he has produced the sanctioned plan and sanction order for reconstruction. Admittedly the building is over 83 years old. Further the premises is situated at a busy commercial locality. A building in such a place with asbestos sheet would be a pimple in a fair face. Considering all these factors it has to be held that the petitioner has established his bonafides.
19. Reliance was placed in 1995-2-LW 772 wherein it was held that unless tenants have got a case that landlords have come to court with an ulterior motive, if the landlord prove the ingredients under section 14(1)(b), bonafides stand automatically proved.
20. Reliance was also placed on 2003 (2) CTC Page 4, 2006 (2) CTC 615. At the risk of petition it has to be stated that the landlord has established his bonafides and hence he is entitled for eviction U/s. 14(1)(b).
22.POINT No.2: Own Use and Occupation:
Petitioner has sought the premises for her daughter to run branch office at the Karthika Astrological Centre, wherein she is manager and to run an e-mail, internet, STD booth.
23. The condition for obtaining orders under section 10 (3) (a) (iii) are as follows:
1.Building should be non-residential character
2.Landlord should be carrying on business on the date of filing of the petition
3.He should not be occupying any other non-residential of his own
4.Landlords claim should be bonafide and not based on oblique motive like trying to obtain more rent or harass the tenant.
PW1 contended that her daughter Mrs.Padmavathy is a graduate in astrology and that she is working as a Branch Manager of Karthika, Astrological Training Centre, Darapuram. Her husband is earning Rs.2,500/- per month. Hence it has become necessary for her daughter to establish her Branch manager office at Pondicherry of Karthika Astrological Centre and establish internet service, Fax, E-mail and STD booth for her income.
24. There is no dispute with respect to the first ingredient. With respect to the second ingredient, it is noticed that the above RCOP was filed on 4.6.2004. Petitioner has produced E.P7 which is a proceedings issued by the Karthika Astrological Training Centre, Dharapuram. Ex.P7 is dated 1.4.2005 i.e., subsequent to the filing of this RCOP. Under Ex.P7, Mrs.Padmavathy is appointed a Branch Manager of the Astrological Training Centre for one year from 1.4.2005 to 31.3.2006. The renewal was purely temporary and not on salary basis.
25. As pointed out by the learned counsel for the respondent, petitioner has sought the premises to establish her branch manager office of Karthika Astrological Training Centre intends to start a branch office at Pondicherry. Consequently it is not known whether the training centre intends to continue the petitioner's daughter as a branch manager at Pondicherry. Petitioner has not stated that her daughter intends to start an Astrological Training Centre independently. Under such circumstances it cannot be said that the requirement of the petitioner's daughter to establish a branch Manager office cannot be construed as personal or as carrying on business.
26. Secondly petitioner contended that her daughter intends to start an internet, Fax, e-mail and STD Booth. It is needless to say that though the section contemplates that as on the date of the petition, the claimant should be carrying on the business, the Hon'ble High Court has repeatedly held that thought the claimant is not carrying on business atleast on step in furtherance would establish her bonafide. Further with the advancement in technology no prior preparation is required to start an internet, fax, e-mail STD booth.
27. At the same time, respondent contended that the petitioner owns another building at Rangapillai Street. Further the adjacent shop which is a part of the entire building has fallen vacant. When bonafides are considered, the landlady filing a petition seeking for requirement of her daughter and pending proceedings other building owned by her becoming vacant and the landlady fails to offer valid explanation for not occupying them, will be material in holding that the petition lacks bonafide. The above was held in 2000 TLNJ-347. It is needless to say that in the instant case the landlady has not offered any explanation for not occupying door No.77 and it leads to the inference that the claim of the landlady lacks bonafides. Consequently, she is not entitled for possession U/s.10(3)(a)(iii).
28. POINT No.3 In the result, this petition is allowed in part. With respect to eviction on the ground of demolition and reconstruction, this petition is allowed. With respect to eviction on the ground of requirement for own use and occupation, this petition is dismissed. No costs. Time for eviction two months."
10.Aggrieved by the Order and Decreetal Order, the tenant/revision petitioner has filed R.C.A.No.15 of 2007, before the learned Rent Control Authority/Principal District Court, Puducherry, the appeal. The grounds of appeal are reads as follows:
"1.The order passed by the Hon'ble Rent Controller in allowing the HRCOP 36/04 with respect to Requirement for Demolition and Reconstruction is contrary to law, weight of evidence and Probabilities of the case.
2.The Hon'ble Rent Controller had failed to appreciate the contentions filed by this Appellant in HRCOP 36/04.
3.The Hon'ble Rent Controlled also had erred in not appreciating the purpose of the documents filed and marked as respondents exhibits in HRCOP No.36/2004.
4.The Appellant most humbly submits that though the learned Rent Controller had pointed out that to maintain a petition under Section 14(1)(b) of Pondicherry Buildings (Lease and Rent Controller) Act the requirements are, i. Bonafide Intention for from Sale object to get rid of tenants, ii. The age of the condition of building and iii. The financial position to demolish and reconstruct have miserably failed to comprehensively appreciate the evidence which were available on record and Perceive the ill-intention of this respondent is only to get rid of this appellant.
5.This appellant submits that the comprehensive perusal of the pleadings and exhibits marked by itself would go to show the malafide intention of this respondent is only to get ride of this appellant.
6.This appellant submits that likewise, the findings as to financial position of the respondent/landlady to errect a new construction is erroneous, without any proof and against principals of Natural Justice and is a finding on air without any pleading or proof.
7.This appellant also submits that the learned Rent Controller had erred in allowing the petition on the ground of Demolition and Reconstruction without considering this appellants prayer for a shop in the new building, as it would amount to blessing in disguise to the respondent as she had obtained an order eviction to fulfil her malafide intention to get rid of this appellant even after she miserably failed to establish her demand for own use and occupation.
8.Likewise the learned Rent Controller had erred in appreciating the land lady's allegation that her daughter intends to establish STD, Fax services in the demised premises to the extent that the landlord need not do any business on the day of filing of petition and one step furtherance would prove the bonafide intention. This concept would not and cannot be applied to the instant case on hand.
9.The appellant also submits that any statement in evidence that too without a pleading will not amount to any undertaking much less a statutory undertaking. When statute requires a particular thing has to be done in a particular form, anything done in a form otherwise cannot be considered to be valid at all.
10.Likewise the finding to the extent that no estimate is required and financial soundness need not be proved are all erroneous.
11.The appellant also submits that the learned Rent Controller had relied on Ex.P6, a letter from a Bank, regarding the financial capacity. The Ex.P6 could not relied upon as it is not marked through the author of the document it is only a photo copy and it is ambiguous as well. As such this finding is also erroneous."
11.The learned Rent Controller after considering the appeal grounds of the tenant and argument of the learned counsel on either side framed two issues as follows:
"1.Whether the landlady requires the demised premises for demolition and reconstruction?
2.Whether the order of the learned Rent Controller is liable to be set aside?
9. POINT No.1: This appeal has been directed against the eviction order dated 24.01.2007 passed by the learned Rent Controller, Puducherry in HRCOP No.36/2004 against the appellant/tenant on the ground of demolition and reconstruction of the demised building.
10. Mrs.Marie Louise Damendy is the landlady herein and Mrs.Sandy Marie Chantalle is the tenant herein. The landlady has filed the eviction petition with reference to the petition mentioned building bearing door No.79, Jawaharlal Nehru Street, Puducherry requesting to pass eviction order against the tenant on two grounds namely, demolition and reconstruction of the petition mentioned building and own occupation for the purpose of putting her daughter Pathmavathy in the new building for her business. After full enquiry, the learned Rent Controller ordered eviction on the ground of demolition and reconstruction, while the other ground was rejected.
11. Door No.77 and Door No.79 petition mentioned building form part of the same building situate in the above said address. While filing this petition for eviction, the landlady has also filed another application in HRCOP No.37/2004 in respect of door No.77 against another tenant namely, Raj. In fact the eviction order was passed against the said Raj in the said HRCOP No.37/2004 on the basis of compromise entered between the landlady and the said Raj.
12. The case of the landlady is that the demised building is a very old one aged about 83 years which requires demolition and reconstruction, and the landlady has obtained necessary permission and approved plan from the Pondicherry Planning Authority and the landlady has applied for loan from the bank, and got approval for construction of the new building. That apart, her daughter Pathmavathy has been appointed as Branch Manager at Pondicherry in the office of Karthika Astrological Training Centre, Dharmapuram, Erode District and also her daughter wants to establish internet services,Fax, E-Mail and STD Booth, etc. in the demised building and hence, on these two grounds eviction order has to be passed against the tenant.
13. The case of the tenant is that the building is in good condition, that the only aim of the landlady is to evict the tenant on some ground so as to lease out the demised building for higher rent to some other tenant, that with a view to evict the tenant the landlady refused to receive the rent paid by her from the month of December 2002 onwards and therefore, after issuing the notice, the tenant filed an application in HRCOP No.30/2004 for deposit of rent, and thereafter, it was not pressed on 07.10.2004 on the basis of the endorsement made by the landlady that she would regularly receive the rent and issue receipts, that the demised building is comprised in a small area measuring 8 X 15 feet. Whereas the entire extent of the building is approximately 2500 square feet and as such, her daughter can establish her business in the other area if really she is going to be established the business and hence this petition is liable to be dismissed.
14. The landlady has examined herself as PW1 and through her Exs.A1 to A7 have been exhibited. She has deposed narrating the averments contained in the petition. Ex.A1 is the copy of the legal notice dated 21.03.2004 issued by the landlady to the tenant. Ex.A2 is the Postal Acknowledgement Card. Ex.A3 is the Reply notice sent by the tenant to the landlady. Ex.A4 is the copy of the approved site plan for the new construction of the building. Ex.A5 is the plan approval order of the Pondicherry Planning Authority dated 21.10.2004. Ex.A6 is the letter dated 19.10.2005 of Indian Overseas Bank, Reddiarpalayam Branch, Pondicherry addressed to the landlady intimating availability of the loan from the bank for the new construction. Ex.A7 is the proceedings of the General Manager of Karthika Astrological Training Centre, Dharapuram dated 01.04.2005 intimating appointment of Mrs.M.Pathmavathy, daughter of the landlady as the Branch Manager of Karthika Astrological Training Centre, Dharapuram at Pondicherry.
15. While examined as RW-1, the tenant has reiterated the contentions in the counter. Ex.R1 is the copy of the legal notice dated 10.03.2004 sent by the tenant to the landlady before instituting HRCOP No.30/2004. Ex.R2 is the Postal Acknowledgement Card for receipt of the notice by the landlady. Ex.R3 is the copy of Petition in HRCOP No.30/2004. Ex.R4 is the certified copy of the Order dated 07.10.2004 passed in HRCOP No.30/2004.
16. The case of the petitioner/landlady is that the demised building is an old one aged about 83 years, and it is structurally a weak building and it requires immediate demolition and reconstruction. In the proof affidavit filed by the landlady she has averred that the demised building is a part of the main building situate at Jawaharlal Nehru Street, Pondicherry, that the door Number of the other part of the building is 77 and the door No.77 was occupied by one Raj and the entire building is an old one aged about 83 years, and to evict that tenant Raj from door No.77 she filed another eviction petition and obtained the eviction order on compromise, that though the tenant in this case originally compromised to vacate the building, she failed to keep her words, she evaded to vacate the demised premises, and hence the landlady has filed this petition, that the demised building was constructed with mud and mortar and brick and with tiled roof that the tiled roof was removed and changed with cement sheet to cover the roof realising the falling of the rafters from the roof and thinking that the building may collapse at any time and that the immediate requirement of the demolition and reconstruction of the building is a bonafide one and hence eviction order has to be passed.
17. While the age of the building is stated to be 83 years by the landlady, the tenant would not accept it, but she would say that from the year 1968 her father-in-law was the tenant in the demised building and thereafter her husband was the tenant and now she is the tenant. Even as per her statement the age of the building is not less than 36 years. While giving evidence, the tenant would admit that the demised building is an old building. The fact that the roof of the demised building was tiled and thereafter it was changed with cement sheet is not denied by the tenant. It is claimed by the landlady that the construction of the old building is with mud and mortar. This statement has also not been specifically denied by the tenant.
18. It is stated by the learned counsel for the landlady that the demised building is situated in a busy business locality surrounded by many shops and if a complex building is constructed in that area that would augment income of the landlady, besides availability of place for the business of the daughter of the landlady. In fact, in para 13 of the proof affidavit filed by the tenant, the tenant has stated that she has established the business of certain leather goods in the demised premises and many shops of like nature of the business have come up surrounding the demised shop and that place has become a centre for sale of leather goods. From the above averments it can be easily ascertained that the demised building is situate in the centre of the business place and construction of multi-storeyed building therein would augment the income of the landlady.
19. From Ex.A4 copy of the site plan and Ex.A5 order for approval of the site plan issued by the Pondicherry Planning Authority, it is noticed that the proposal of the landlady for demolition and reconstruction of a new building is a believable one. Regarding the means to construct the new storeyed building Ex.A6 letter has been produced by the landlady. Pointing out the above features the learned counsel for the landlady argued that the eviction order passed against the tenant by the learned Rent Controller is a correct one, and in support of his argument, he cited the following decisions:
i. Hon'ble Madras High Court reported in 1995(2) Law Weekly at page 14 A.N.Srinivasa Thevar Vs. Sundarambal alias Prema, ii. Hon'ble Supreme Court of India reported in 2006 (2) CTC at page 615 S.Venugopal Vs. A.Karruppusami and another, iii. Hon'ble Madras High Court reported in 2003 (2) CTC at page 4 P.Ganesan Vs. Subbiah Dharmanidhi Tuticorin through its Managing Trustee, D.Ganesan, iv. Hon'ble Supreme Court of India reported in 2004 (3) Law Weekly at page 754 P.S. Pareed Kaka and others Vs. Shafee Ahmed Saheb, v. Hon'ble Madras High Court reported in 1999 (3) M.L.J. At pae 194 R.Rajendran Vs. E.M.Kuthurathullah,
20. The learned counsel for the landlady drew the attention of this court to para 17(d), 18 and 19 of the above first mentioned decision wherein it is held:
17(d) "The condition of the building cannot be restricted to the stability of the building. The consideration of the condition of the building would include the nature of construction of the building. For an example, a fifty years old country tiled building, situate in a busy locality like Mount Road, or even a good residential locality however well maintained it may be, it cannot be said that the building should not be demolished for giving place to multi storeyed building"
18 - ".......A cumulative reading of all the above facts would make it clear that in a busy locality in Pondicherry town, the demised premises which is more than 30 years old, with asbestos roof, occupying one third of the site leaving two third of the site vacant, behind the building....................deserve an order of eviction"
19- "While construing the bonafide requirements under Section 14(1)(B) of the Act, the structural and physical features, the nature of the construction of the building cannot be ignored."
He drew the attention of this Court through para 11 of the above second mentioned decision wherein it is held:
"In the instant case, we find that the property owned by the landlord, whatever may have been its value in the past, has acquired commercial value and therefore, the landlord wishes to demolish the old single storey structure and to construct a multi-storied building which may fetch him higher rent, apart from serving his own needs. The landlord had already applied to the competent authorities and got the plans approved. Taking into consideration all these reasons, were are convinced that the landlord bona fide intends to demolish the old building and to construct a new one. Raising funds for erecting a structure in a commercial centre is not at all difficult when a large number of builders, financiers as well as banks are willing to advance funds to erect new structures in commercial area."
Citing the above 5th mentioned decision the learned counsel for the landlady argued that the petitioner/landlady is at liberty to put new construction in the premises with good look and modern fashionable show cases and other structural alterations so as to augment her income as well as providing space for the business of her daughter as stated above. It is proved that the demised building is an old one with poor structure of construction, and the petitioner has obtained plan for the construction of new building and it is also proved that she is able to raise funds from the bank. When these factors are considered in view of the above said decisions cited by the learned Counsel for the landlady, then the requirement of the landlady to reconstruct the building seems to be a bona fide one.
21. That apart, the landlady has obtained eviction order in respect of other portion of the entire building which is not disputed by the tenant herein. This factor has to be considered in favour of the landlady has obtained eviction order in respect of the larger portion. It is quite natural and bona fide on her part to vacate the smaller portion also for reconstruction so as to put up a new storeyed building in the entire place. Ex.A4 approved plan would show that the landlady is going to put up a storeyed building in the entire space. This circumstances would have also taken into account.
22. Learned counsel for the appellant/tenant argued that Ex.A4 Plan has been obtained only in the year 1998, but no revised or renewed plan has been filed by the landlady and merely because the landlady has obtained a letter from the Bank that does not mean that the landlady has sufficient means, and obtaining of the approval from the Pondicherry Municipality will not help the landlady in this case and in this circumstances, the request of the petitioner on the ground of demolition and reconstruction cannot be accepted and in support of his argument, he cited the decision of the Hon'ble Madras High Court reported in 1999 (3) Law Weekly at Page 546 P.Ganesan Vs. A.Marimuthu.
23. Though Ex.A4 site plan is of the year 1998 from Ex.A5 Order of the Pondicherry Planning Authority, vide letter dated 21.10.2004, it is noticed that the approval for construction of the new building is extended till 20.10.2007. so there is no difficult for the landlady to get approval extended from time to time. Likewise, from Ex.A6 Letter of the bank, it is noticed that the Bank is willing to provide loan for the construction. It is the fact that now it is easy to anybody to raise funds from the bank for business as well as putting up new construction. Hence, the objection raised by the learned Counsel for the appellant/tenant cannot be accepted. The decision put forth by the learned counsel for the appellant/tenant will not help the tenant in this case.
24. Another argument put forward by the learned counsel for the appellant/tenant is that the undertaking as envisaged u/s.14(2)(b) of the Act has not been given by the landlady in the application and hence eviction cannot be ordered. In the Proof Affidavit filed by the landlady an undertaking as required under the Act has been given. But, this objection of the tenant has been considered by the learned Rent Controller in the light of the decision reported in 1989 Law Weekly at page 228 at 231, and reported in 1989 Law Weekly at page 585 and the learned Rent Controller came to the conclusion that the undertaking given by the landlady in the proof affidavit is sufficient which seems to be a correct view. In the decision of the Hon'ble Madras High Court reported in 2007(2) CTC at page 518 this point has been given for consideration and it has been held at para 29 as follows:
"Coming to the question of the landlord's not giving an undertaking under section 14(2)(b) of the Act, it is true that if no such undertaking is given it is not in consonance with the provisions of the Act. But what is to be decided is whether not giving an undertaking is a rectifiable error or not. This Court has already held in K.Sanjeevi Kumar V. P.Somasundaram, 2006(2) MLJ 524, that it is only an error and the landlord can be given an opportunity to rectify the error and file an undertaking before the order of eviction is passed and the same can be done in Appeal or revisional stage.
Hence, the objection raised by the appellant/tenant cannot be sustained.
25. So far as the requirement of the landlady on the ground of own occupation is concerned it has been rejected by the learned Rent Controller. No appeal has been filed by the landlady challenging that finding. Learned counsel for the landlady argued that even though no appeal has been filed by the landlady challenging that finding, since the tenant has filed this appeal, the landlady has right to canvas any ground in this appeal and in support of his argument, he cited the decisions of the Hon'ble Madras high Court reported in 1989(1) Law Weekly at page 155 Durai Ammal Vs. R.T.Mani and reported in 2007 (2) CTC at Page 518 Lakshmi Vs. M.V.Balamurali and another, which decisions support the argument of the learned counsel for the landlady.
26. Learned counsel for the landlady also argued that the reliance u/s.14(1)(b) and 10(3)(a)(iii) of the Act are mutually exclusive, in view of the decisions of the Hon'ble Madras High Court reported in 1999 (3) MLJ at page 194 R.Rajendran Vs. E.M.Kuthurathullah, and reported in 2007 (2) CTC at Page 518 Lakshmi Vs. M.V.Balamurali and another. Those decisions would establish that the above requirements are mutually exclusive. Learned counsel for the landlady argued that having obtained eviction order on the ground of demolition and reconstruction, the landlady cannot be prevented from praying an eviction order on the ground of own occupation also, and the requirement under own occupation in this case has been amply established, and hence eviction order can also be passed on the ground of own occupation.
27. Bona fide requirement of the landlady for her own occupation has been discussed in the decision filed by the learned Counsel for the landlady as reported in 2002(5) Supreme Court Cases at page 397 Joginder Pal Vs. Naval Kishore Behal and delivered by the Hon'ble Supreme Court of India. So far as this ground is concerned, apart from the whole evidence of the landlady, Ex.A7 proceedings has been relied on by the landlady. So far as Ex.A7 Proceedings is concerned, the fit person to speak regarding that document is Mrs.M.Pathmavathy, daughter of the landlady, but she has not come to the box to support her claim. No certificate has been produced by the landlady to establish that her daughter has acquired knowledge in astrology. Further she is a married woman and though the landlady claims that she is residing with her, no other documentary evidence such as family card has been produced by the landlady to prove that her daughter Pathmavathy is residing with her and she is depending on her. It is clear from the evidence that the husband of her daughter is an employed man. While giving evidence PW1 landlady has deposed that there is a house at Rangapillai Street which belongs to her son, but no document to show that the house belongs to her son has been produced and such a plea has not taken the application and hence, the suppression of this fact creates some doubt in the bona fides of the landlady in this aspect.
28. As already pointed out, the demised building is a small portion of the entire building, and two storeyed complex building is going to be constructed in the entire space. In such a case, it cannot be stated that this particular portion alone is required by the daughter of the landlady to set up her business. Though it is stated that her daughter is going to start certain businesses namely, Internet services, Fax, E-mail, STD Booth, steps taken by her in this regard have not been proved in this case. It is easy for anybody to say that she or he is going to start a business. Unless some documentary proof is established that some steps have been taken in that regard, the mere averment cannot be the basis for bonafideness. Considering the requirement of the demised building to the landlady for own occupation is concerned, this Court feels that the requirement is not a bonafide one and there is no merit on the side of the landlady to interfere with the decision of the learned Rent Controller in this regard.
29. So far as this appeal filed by the tenant against the order of eviction on the ground of demolition and reconstruction is concerned, this Court feels that for the reasons stated above, there is no merit in this appeal. Hence, this point is answered accordingly.
30. POINT No.2: In view of the discussion in Point No.1, this point is answered against the appellant/tenant and in favour of the respondent/landlady.
31. In the result, the appeal is dismissed with costs. The order, dated 24.01.2007, passed in HRCOP No.36/2004 by the learned Rent Controller, Puducherry is hereby confirmed. Time for eviction is two months."
11.Aggreived by the said Judgment and Decree passed in R.C.A.No.15 of 2007, by the learned District Judge, Puducherry, the revision petitioner has preferred this revision petition before this Court.
12.The learned counsel appearing for the revision petitioner has raised the following grounds namely:
1.The order of the learned Appellate Authority is against law, weight of evidence and probabilities of the case.
2.The RCOP is filed for seeking eviction on the ground of demolition and reconstruction and requirement of the premises for own use and occupation. The above said RCOP is not maintainable. Those grounds are alternative to each other but both cannot survive simultaneously. It is so, because one if destructive of the other, before ever demolition is made if owner is to utilise, then demolition becomes frivolous. Similarly, if demolition is made, owner's occupation can be claimed only on re-construction, which is a prospective chance of existence. No claim could be placed upon a prospective chance of existence of corpus. It is in that way one is destructive of the other. It was so held in K.A.M.A.K.Nataraja Nadar and sons Vs R.Kannan 2005 (5) CTC 537; followed in Duraisamy and other Vs. R.Sureshlal and another reported in 2006(3) CTC 147. On the ground alone this Hon'ble Court may be pleased to set aside the Lower court Judgments.
3.Either the Rent Controller or the Appellate Authority has applied the said rulings in passing final orders in RCOP or RCA. Hence, the order is unsustainable in the eyes of law, contrary to the ruling cited above and deserves to be set-aside.
4.The land lady did not disclose the true extent of present accommodation with her and the requirement if the premises in occupation of tenant were dilapidated condition and require demolition. These are vital points which needs consideration before passing an order of eviction of a tenant as held in Lakshmana Prasad Mahendra Vs I Additional District Judge, Sitapur, 1998(2) Rent LR, Allahabad 412. Therefore the judgment is perverse.
5.The learned Rent Controller as well as the Rent Appellate Authority have not followed the procedure and complied with the statutory requirements as contemplated under Sec.14(2)(b) of the Act, they are just carried away that the undertaking given in the deposition by the petitioner in the RCOP is sufficient which is against the law. It is one of the essential ingredients to pass an order of eviction U/Sec.14(1)(b). Under these circumstances this Hon'ble Court can interference when the concurrent findings of the lower courts judgments are not based on correct principles; as held in Kailashchand Jain and Others Vs.Mohd. Kasim 1995(1) CTC 47.
6.The lower courts have failed to appreciate the evidence let in by the petitioner herein and on the other hand suo-moto vouchsafed the evidence let in by the respondent herein, and such findings resulted in miscarriage of justice. Therefore, this court is armed with power of interference with such concurrence findings, as reported in Murugesan Vs. Raja Md. 1995(1) MCJ 84.
7.The learned Rent Controller as well as the Appellate Authority have not considered the relative hardships of the landlady as well as the tenant, since the tenant in occupation is over 40 years and a lady earning her livelihood by doing business.
8.The learned Rent Controller as well as the Appellate Authority have not considered the right of the tenant of re-occupation after re-construction which totally erroneous on the part of the Hon'ble Rent Control Authorities which amounts to miscarriage of justice.
9.Even though the rent control authorities have concurred that the land lady lacks bonafide in owner's occupation as her own daughter for whom she prays for eviction has not come forward to establish that she had acquired knowledge in astrology. Further, she is a married women and though the landlady claims that she is residing with her, no other documentary evidence such as family car is produced to prove that her daughter is residing with her and she is depending on her. It is admitted by both the authorities in lower court that it is a clear case of suppression of material facts, and creates a doubt in bonafide requirement of buildings. However, gave a concurrent findings which is against the settled principles of law. Therefore, this Hon'ble Court may be pleased to set aside the orders of the Lower Courts.
10.The learned Rent Control Appellate Authority has erred to note that there is no valid approved plan for so called re-construction. It cannot be said that it is a matter of common knowledge that rent control proceedings takes several years till a final decision is reached, which is a stigma on the administration of justice and is observed by judicial officers.
11.The petitioner of revision reserves his right to advance further grounds for consideration of this Hon'ble Court, if any at the time of the argument.
Therefore, he prays to set aside the Judgment dated 18.03.2008, passed by the learned Principal District Judge, Puducherry-cum- Appellate Authority in R.C.A.No.15 of 2007 concurring the order dated 24.01.2007, passed by the Rent Controller-cum-Principal District Munsif, Puducherry in H.R.C.O.P.No.36 of 2004.
13.In support of his contentions, the learned counsel has cited the following Judgments made in 2006 (3) CTC 147, High Court of Madras, Duraisamy v. R. Sureshlal, the relevant head notes of which are as follows:
"Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, Sections 10(3) & 14 Requirement of premises and eviction on ground of own use and demolition and reconstruction are mutually destructive claims and not maintainable simultaneously These grounds can be raised alternatively only as it will amount to a claim based on a prospective chance of existence of corpus. (Para 3) Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, Sections 14(1)(b) Bona fides When sanctioned plan is not filed, there is no evidence indicating financial resources and also condition of building requiring demolition Requirement of the landlord cannot be said to be bona fide. (Para 5) Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, Sections 8 & 9 Tenant can approach Rent Controller to deposit rents only when there is refusal by the landlord When there is no such contingency tenant cannot be faulted with an termed as a defaulter when he could not move Rent Controller or the Collector to deposit rents Section 9 could not also be involved as "Authority" prescribed was named much later than institution of petition."
2005 (5) CTC 585, Madurai bench of Madras High Court, M.Abu Tahir, M. v. M.Rahamathulla, the relevant head notes of which are as follows:
"Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, Sections 10(3)(a)(iii) & 14(1)(b) Eviction on ground of owner's occupation for carrying on business and for demolition and reconstruction Both Sections do not synchronise and are inconsistent Landlord has to choose either to evict tenant on ground of own use and occupation or for demolition and reconstruction.
(Paras 11 & 13) Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, Sections 14(2)(b) Undertaking by the landlord mandatory There is no particular form for such undertaking It can be incorporated in petition itself or by way of separate affidavit or even given at time of giving evidence as long as it is done before ordering eviction by Rent Controller Landlord cannot give undertaking in appeal or revision, supporting order of eviction or order of eviction may be restored subject to such undertaking given, when originally there was no undertaking in any form before passing of order of eviction.
and the Court has held as follows:
"2.The revision petitioner, claiming to be the owner of the property described in R.C.O.P.No.2 of 1997 on the file of the District Munsif, Padmanabhapuram, as well as contending that he is the landlord, has filed a petition for eviction of the tenant, on the ground that the tenant/respondent had committed wilful default in payment of rent that the demised premises is required for him to carry on business, which he is already owning and that the building, which is in dilapidated condition, is required for immediate purpose of demolition and reconstruction, invoking the provisions of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, hereinafter called 'the Act' under Sections 10(2)(i), 10(3)(iii) and 14(i)(b) of the Act."
14.Learned counsel appearing for the respondent argued that there is no discrepancy in the said order and decreetal order passed by the learned Rent Controller as well as the learned Rent Control Authority. The learned counsel further argued that the respondent landlady obtained a plan of approval and that the same had been renewed since the building had not been vacated within the stipulated period. So, the landlady had renewed the plan of approval on 21.10.2004. The landlady had also been sanctioned a loan for construction of building in the said petition premises. As per the Order, the landlady could not avail the loan in time and as such, the loan sanction order has been renewed. For building construction, permission has also been given by the concerned authorities. The learned counsel vehemently argued that the property is located in a prime area in Pondicherry. The building is about 83 years old and has been constructed using mud and mortar. The building is now in a dilapidated condition and this is evident from the act of the tenant in removing tiles on the roof and replacing it with cement sheets. The landlady has proved her case before the learned Rent Controller and learned Rent Control Authority, by way of filing vital important documents namely loan sanction order, plan of approval and permission for demolition. As such, her claim in the petition is a bonafide one. The learned counsel for the respondent, in support of his contentions has cited the following Judgment made in 2007 (2) CTC 518, High Court of Madras, Lakshmi Vs. M.V.Balamurali and another, the relevant head notes of which are as follows:
"Tamil Nadu Buildings (Lease & Rent Control) Act, 1960 (18 of 1960), Sections 14(1)(b) & 10(3)(1)(iii) Demolition and Reconstruction and Owner's Occupation Both reliefs are mutually exclusive Once landlord establishes bona fide mere reference to Section 14(1)(b) will not deny remedies available to landlord and tenant liable to be evicted under Section 10(3)(a)(iii). (Para 21) Tamil Nadu Buildings (Lease & Rent Control) Act, 1960 (18 of 1960), Sections 14(1)(b) Demolition and Reconstruction Sufficiency of Funds Proof of -Change in scenario in country and loans are easily available for property owner to put up new construction Appellate Authority's view that landlord has not established means incorrect. (Para 28) Tamil Nadu Buildings (Lease & Rent Control) Act, 1960 (18 of 1960), Sections 14(2)(b) Demolition and Reconstruction Undertaking Landlord can be given opportunity to rectify error by giving fresh undertaking before eviction order is implemented and Eviction Petition cannot be rejected on ground that no undertaking was given as contemplated under Section 14(2)(b). (Paras 29 & 30)
15.Considering the order and decreetal order passed by the learned Rent Controller/Principal District Munsif, Puducherry in H.R.C.O.P.No.36 of 2004 and decree and Judgment passed in R.C.A.No.15 of 2007, by the learned Rent Control Authority/District Principal Judge, Pondicherry, dated 18.03.2008 and after hearing arguments advanced by the learned counsel appearing on either side, this Court considers the following points in coming a conclusion:
1.Ex.A4-Approval plan, Ex.A5-Permission for construction; Ex.A6-Loan sanction order; Ex.A8-Renewal of plan approval; Ex.A9-renewal of loan sanction order. These documents are all of vital importance and proves that the landlady has taken steps for demolition and re-construction.
2.The building is 83 years old and this fact has not been resisted by the revision petitioner/tenant.
3.The property is situated in a prime location in Ponducherry and as such the said area could be put to much better use, if the building is demolished and reconstructed.
16.Considering the above three aspects this Court holds that there is no discrepancy in the order passed by the learned Rent Controller as well as the learned Rent Control Authority/Principal District Judge, Pondicherry. Hence, this Court confirms the said orders passed by the Courts below.
17.After demolition and re-construction, it is not open to this Court to order the landlady to re-allot the said portion of the building to the tenant.
18.In the result, the above Civil Revision Petition is dismissed and the order passed by learned Principal District Munsif-cum-Rent Controller, Puducherry in H.R.C.O.P.No.36 of 2004 and the Judgment and decree passed by the Principal District Court in R.C.A.No.15 of 2007, dated 18.03.2008, is confirmed. Consequently, connected miscellaneous petition is closed. There shall be no order as to costs.
krk To:
1.The Principal District Court, Puducherry,
2.The Principal District Munsif-cum-Rent Controller, Puducherry