Madras High Court
R.R. Dinakaran vs S.L. Chinnakuppuswami on 25 February, 1986
Equivalent citations: (1987)1MLJ124
Author: S. Natarajan
Bench: S. Natarajan
ORDER S. Natarajan, J.
1. This revision under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act (1960), hereinafter referred to as the Act, has been preferred by a tenant, who is aggrieved against an order of eviction passed by the appellate authority against him under Section 10 (2)(iii) of the Act.
2. Admittedly the respondent herein, who is the landlord, has leased out the petition premises to the petitioner for nonresidential purposes, to wit, running a hotel. Originally the petitioner had taken the building on lease from the respondent's father, but subsequently on partition in the family, the petitioner had attorned the tenancy to the respondent and has been paying the agreed rent of Rs. 100 per month. On the ground that the tenant had committed acts of waste in the building and thereby impaired materially the value and utility of the building, the respondent filed R.C.O.P. No. 559 of 1978 under Section 10(2)(iii) of the Act for evicting the petitioner. Besides recording the evidence of the parties in the "enquiry" before him, the Rent Controller also issued a warrant of commission and had the premises inspected by an Advocate-Commissioner. The Advocate Commissioner has submitted a plan and report wherein he stated that the tenant has replaced the old tin roof with zinc sheet roof in certain portions and he has also provided a plywood ceiling in the main hall, that he has replaced the mud walls with brick walls and that he has also replaced the wooden pillars with brick pillars in the eastern hall. The Rent Controller went into the matter in great detail and held that far from impairing the value of the building either from the point of value or utilitarian aspect, the tenant had effected improvements to the building and as such there is no scope for the landlord to seek eviction of the tenant under Section 10(2)(iii) of the Act. Consequently the Rent Controller dismissed the petition for eviction.
3. In the appeal preferred by the landlord, the appellate authority has reversed the order of the Rent Controller. However, its reasons for doing so are not clear from its order. The appellate authority has agreed with the finding of the Rent Controller that by reason of the repairs and the changes effected by the tenant, the value of the building as well as its utilitarian purpose has been enhanced. Nevertheless the appellate authority has proceeded on the basis that the tenant has not obtained the permission of the landlord for making the changes and improvements; secondly, the tenant has burdened the landlord with liability by effecting the improvements at considerable cost and thirdly, the tenant has also put clogs in the way of the landlord seeking possession of the building for purposes of demolition and reconstruction. In accordance with such findings, the appellate authority has allowed the appeal and ordered eviction of the tenant.
4. In order to canvass the correctness of the order of the appellate authority, the tenant has preferred this revision. Before we go to the facts of the case, it will be relevant to refer to the terms of Section 10(2)(iii) of the Act. The said Section 10(2)(iii) reads as follows:
10(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied.
(iii) that the tenant has committed or caused to be committed such acts of waste as are likely to impair materially the value or utility of the building, the Controller shall make an order directing the tenant to put the landlord in possession of the building and if the Controller is not so satisfied, he shall make an ordei rejecting the application.
On a plain reading of the above provision, it may be seen that what is envisaged is committing of -acts of waste which are likely to impair materially the value or utility of the building. In other words, the acts of the tenant must be such as would prejudicially affect the interests of the landlord by either lowering the value of the building or by reducing its utilitarian value for being let out for the same purpose for which it had been let out, or for allied purpose. Therefore it goes without saying that every act of a tenant, even if it is not permitted by the landlord, will 'hot amount to an act of waste, as contemplated under Section 10(2)(iii) of the Act. It is only a harmful act which is contemplated under Stion 10(2)(iii) of the Act, namely, an act of waste which impairs materially or affects adversely the value or utility of the. building.
5. Viewed in this perspective, it is seen that the petitioner herein cannot be said to have committed any act of waste as would materially impair the value or the utility of the building. In his petition, the respondent was taking the stand that even without the repairs the building was in good condition. But he shifted his stand during the enquiry and tried to contend that the condition of the building was such that it warranted demolition and reconstruction, but the tenant was putting spokes in the wheel by effecting improvements to the building. The Commissioner's report shows that the petitioner has replaced the worn-out roof with new roof and that he has also replaced the mud walls and the wooden pillars with brick walls and brick pillars. Both the Rent Controller and the appellate authority have held that the changes effected by the petitioner have enhanced the value of the building. In so far as its utilitarian value is concerned, the respondent herein has not shown how the building has been rendered less fit or useful for running a hotel by reason of the works carried out by the petitioner. Therefore, on the established facts, the petitioner is entitled to succeed.
6. Even so, Mr. R. Krishnamurthy, learned Advocate-General appearing for the respondent seeks to justify the order of eviction and has advanced arguments in that behalf.
7. Before considering the grounds put forth on behalf of the respondent. I may advert to some earlier decisions of this Court on this point. In G. Natarajan v. P. Thandavarayan (1969) 2 M.L.J. 19 : 82 L.W. 208. Ramaprasada Rao, J., as he then was, has held that what is contemplated in the section Section 10(2)(iii) is the lowering of the economic value of the building and not a possible mental inconvenience suffered subjectively by the landlord on a prima facie examination of the building. It is further stated that unless there is clinching evidence to satisfy the conscience of the Court that the acts complained of have caused damages to the building or its utility, it' would be in the region of wild speculation to conclude that the necessary ingredients or the sine qua non of the section have been satisfied. It is worthwhile pointing out that the acts complained pf in that case were (1) drilling of a hole 3" in diameter in the terrace portion of the main building (leased for running a hotel) to let out smoke; and (2) removal of a portion of the parapet wall on the terrace of the building, to a length 2' x 3' or 31/2' to enable the employees housed in the adjacent building to have ingress and egress to the hotel premises.
8. In P.M. Mohideen Sahib v. Mohammed Habibulla Sahib (1975) T.N.L.J. 53 the same learned Judge has held that an act of waste should not be misunderstood as any act done by the lessee, whether it be for improving the premises or otherwise, and it should refer to such acts which are prejudicial to the interests of the landlord in so far as the premises is concerned and would physically and demonstrably lessen the utilitarian value of the building and cause resultant prejudice to the landlord.
9. In yet another decision rendered by Ramaprasada Rao CJ., in Mesdames Tara Moolgaukar and Ors. v. T. Raj Mohan Rao ,it has; been held that since Section 10(2)(iii) is a very stringent provision, it becomes all the more necessary for Courts to administer it cautiously and accept the request of the landlord for eviction only under stated circumstances which satisfy every limb of the Sub-section. In that case it was held that by using the garage as a room, it could not be said that the tenant had committed acts of waste. To the same effect is the decision of Nainar Sundaram, J., in P. Thandavarayan v. Y.L. Lakshmi Ammal 1985 T.N.L.J. 160.
10. Notwithstanding these pronouncements and the report of the Commissioner in this regard, Mr. R. Krishnamurthy, learned Advocate-General argues that even if the capital value of the building had been enhanced by the works carried out by the petitioner, yet it must be taken that its utilitarian value has been materially affected. But I find that there is no material on the basis of which such a contention can be raised. Nowhere has the respondent stated that by reason of the works executed by the petitioner the building has become unsuited or less suited for running a hotel.
11. The learned Advocate-General then stated that by the execution of the unauthorised works, the petitioner has remodelled and reconstructed the building to suit his personal requirements and such conversion would certainly attract the mischief of Section 10(2)(iii) of the Act/In support of this argument, the learned Advocate-General cited the decision in Sha Nirbhayalal Bahadurmal v. Krishna Rao M. Nikan. (1982) 95 L.W. 792. The ratio laid down in that case will not govern the facts of the present case because no deviation or remodelling has been done and the works carried out by the petitioner herein have been done only to replace the existing roof, walls and pillars with new materials or with bricks and mortar instead or earth as the case may be.
12. Another decision in Sha Jetmull Genmull v. Gocooldass and Co., represented by its Partner Govindass Purushothamdas (1971) 2 M.L.J. 224 was also cited to contend that the works carried out by a tenant may increase materially the value but affect the utilitarian value or vice versa and that in either case it is not open to a tenant to contend that since the material or utilitarian value has been increased the application of Section 10(2)(iii) of the Act is not called for. Here again it has to be mentioned that there is no evidence, much less evidence worthy of acceptance to show that by increasing the material value of the building, the utilitarian value has gone down or vice versa.
13. It was then urged that the works carried out by the tenant interfered with the ageing process of the building under Section 1(1)(b) of the Act for purposes of demolition and reconstruction got materially affected. If the condition of the building was bad, the respondent could have straightway sought eviction under Section 14(1)(b) of the Act, but that was not the ground on which eviction was asked for. In fact, his own averment in the' petition is that the building is in a good tenant able condition. Moreover, it has to be pointed out that it is not open to the landlord to say that the tenant should, keep, the rented premises in "as is where is" condition, till he vacated the building of his own accord or he is evicted there from by due process of law. It is therefore futile to contend that a tenant is not entitled to carry out works to the building and keep it in good condition, because, that would affect the right of the landloro to seek recovery of possession of the building after some length of time on the ground that the building is an old and dilapidated one and that he requires it bona fide for purposes of demolition and reconstruction.
14. Lastly, it was alleged that after having carried out the repairs unauthorisedly, the petitioner is claiming reimbursement of the amount spent by him and has actually filed a suit and this would clearly show that he has not carried out mere repairs, but has made structural alterations and improvements which are beyond the scope of the Act, and therefore, the respondent's claim for eviction had been rightly sustained by the Appellate Authority. It was urged that under the Act a tenant can expend an amount equivalent to one month's rent for repairs, but he cannot spend larger amounts, as in the present case, and coerce the landlord to reimburse him the amount spent by him. It would appear that subsequent to the filing of the petition for eviction, the petitioner has filed a suit for recovery of a sum of Ra. 29,000 and odd from the respondent on the ground that he had expended the amounts pursuant to an oral agreement and effected improvements and as such, the landlord is bound to reimburse him the same. This contention is not a relevant one for consideration. In the first place the suit has been filed subsequent to the petition for eviction and perhaps it may be as a counterblast for the eviction proceedings. Secondly if the claim of the petitioner for reimbursement is not legal, the proper course for the respondent is to contest the suit and have it dismissed. He cannot make use of the filing of the suit as a circumstance in his favour to seek the eviction of the tenant for which he had filed a petition much earlier.
15. For all the reasons stated above I find that the order of the Appellate authority is wholly unsustainable, Accordingly, the revision petition is allowed and the order of the Appellate authority is set aside and that of the Rent Controller will stand restored and the petition for eviction will stand dismissed. There will be no order as to costs.
16. Learned Counsel for the respondent stated that a specific observation may be made in this judgment that the dismissal of the respondent's petition under Section 10(2)(iii) would not stand in the way of the respondent filing a petition under Section 14(1)(b) of the Act for recovery of possession of the leased building for purposes of demolition and reconstruction. There is no warrant for any apprehension that the dismissal of the petition under Section 10(2)(iii) will have an adverse impact on any petition filed by the respondent under Section 14(1)(b) of the Act. This is because of the fact that the age and condition of the building is only one of the factors to be taken into consideration in the disposal of a petition under Section (1)(b) and it cannot be the sole criterion. Therefore, it is always open to the respondents if so advised to file petition under Section (1)(2) of the Act and obtain orders of eviction of the tenant, subject to his satisfying the Court of the bona fides of his claim and the condition of the building, in spite of the repairs and other works carried out by the petitioner' for better enjoyment of the building.