Madras High Court
S. Kannan vs P. Manoharan on 5 November, 1996
Equivalent citations: 1996(2)CTC733, 1997 A I H C 3156, (1997) 2 RENCR 491 (1996) 2 CTC 733 (MAD), (1996) 2 CTC 733 (MAD)
ORDER S.S. Subramani, J.
1. Landlord in R.C.O.P. No. 393 of 1982, on the file of the District Munsif-cum-Rent Controller, Madurai, is the revision petitioner.
2. Eviction was sought against the tenant on the ground that he has defaulted in paying rent at the rate of Rs. 350 per mensem from the month of June, 1981 and the default continued even on the date of petition. It was further said that the premises is very old, i.e., 70 years old, and the front portion of the building is fairly in good condition, but the rest of the building has developed cracks, and the rear portion of the building is in a dangerous position and is likely to fall down at any time. It was further said mat the building has to be demolished and reconstructed, and for such purposes, the landlord has got means. The landlord is in a position to start the reconstruction work within a month from the date of eviction.
3. A counter-statement was filed by the tenant wherein he disputed both the claims. He said that he has not entered into a rental arrangement with the petitioner. The property belonged to one Seethalakshmi Ammal, and the same was taken on lease by one Ramadoss, on behalf of a partnership company. Seethalakshmi Ammal received an advance of Rs. 1,400 on 1.10.1967, and a stamped receipt was also given by her. The suit property was taken on lease for doing wholesale business in potatoes, onion, garlic, etc. Even during the lie time of Seethalakshmi Ammal, her son Sundaram was collecting the rent. The partnership firm was dissolved and the tenant's father was conducting the wholesale commission business. All payments were entered in a notebook retained by him and they are also reflected in the account-books maintained by the respondent. It has been assessed to income-tax and other authorities. The account books are being maintained in the usual course of business. It is said that the rent for the month of May, 1981 was paid by him and necessary entry was made in the pocket notebook. Subsequently, the rent for June, 1981 had been paid on 26.7.1981 and entered in the rent notebook as usual. Subsequent rents for July the December, 1981 were paid as and when they became due and necessary entries were made in the notebook. The notebook was handed over to the petitioner's father on 16.2.1982 when the rent for January, 1982 was paid to the petitioner's father. Petitioner's father wanted the said notebook, stating that he will return it after verifying the payments. But, he did not return it. It is said that the rent from August, 1982 had been deposited into Court without any default. Therefore, according to the tenant, he cannot be termed as a wilful defaulter.
4. In so far as the other ground of eviction, namely, demolition and reconstruction is concerned, it is the claim of the tenant that the building is 25 or 30 years old. It is in good condition, and it is not in a dilapidated condition as alleged in the eviction petition. He prayed for dismissal of the eviction petition.
5. During trial, evidence both oral and documentary was taken. On the side of the landlord, petitioner was examined as P.W.I and on the side of the respondent, apart from the respondent, one more independent witness was examined as R.W.2. As documentary evidence, Ex.A-1 to A53 were marked, and Ex.B-1 to B-10 were marked on the side of the respondent. An Advocate-Commissioner also inspected the property and verified the physical condition of the building, and fixed Ex.C-1 Report and C-2 Plan.
6. On the above materials, Rent Controller found both grounds in favour of the landlord and allowed eviction. When the matter was taken in appeal, Appellate Authority reversed both the findings and dismissed the eviction petition. Judgment of the Appellate Authority is now challenged in this revision petition.
7. I will first consider the question whether the building requires immediate demolition and reconstruction.
8. As held in P. Orr. &. Sons (P) Ltd, v. M/s, Associated Publishers (Madras) Ltd., 1996 (2) L.W 547 the physical condition of the building is of primary importance, though their Lordships said that it need not be in the nature of being crumbling down. While considering the bona fides, their Lordships said that 'S.14 (1) (b) is satisfied only if the building is bona fide required by the landlord for the "immediate" i.e., direct, sole and timely purpose of demolishing it with a view to erecting a new building on the site of the existing building. Various circumstances such as the capacity of the landlord, the size of the existing building, the demand for additional space, the condition of the place, the economic advantage and other factors justifying investment of capital on reconstruction may be taken into account by the concerned authority in considering an application for recovery; but the essential and overriding consideration which, in the general interest of the public and for the protection of the tenants from unreasonable eviction, the legislature has in mind, is the condition of the building that demands timely demolition by reason of the extent of damage to its structure making it uneconomical or unsafe to undertake repairs. While the condition of the building by itself may not necessarily establish the bona fide requirement under Cl.(b), that condition is not only one of the various circumstances which may be taken into account by the Controller, but it is the essential condition in the absence of which it would not be possible for the landlord to prove that he has a bona fide requirement which is timely, directly and solely for the purpose of demolition of the building. The Act does not accept the requirement by the landlord as a bona fide requirement within the meaning of the provision unless the condition of the building, in the context of the relevant circumstances, requires demolition. These are matters which are to be proved by evidence.' Their Lordships further said thus:-
"It must, however, be emphasised that in order to satisfy the test under Section 14(1)(b) the condition of the building need not have deteriorated to the extent of the building being in danger of crumbling down, but the condition must be such as to indicate a bona fide requirement for the time, genuine and direct purpose of demolition and reconstruction.
9. In J.D. Devadoss v. Srikantiah, 1986 (I) M.L.J. 93, it is held by this Court that regarding proof of physical condition of the building, it is desirable that the petitioner should let in evidence by examining a qualified engineer or commissioner to show that the building is in a dilapidated condition and that it requires demolition and reconstruction.
10. Now let us see, what is the evidence that was let in before the Rent Controller. As I have said earlier, Commissioner was deputed by Rent Controller, who filed a Report and Plan. No objection was filed to the said Report by any one, and in fact, there is no challenge to the said Report. Being a Report filed by an impartial person, at the direction of the Court, it has got some primary importance. Again, the Report of the Commissioner is evidence in this case, especially when the same is not objected to by any one. After giving a general description about the building, the Commissioner has said that the building is not in a good shape. Each and every room was independently verified, and the Report has been given thereafter. It says that there are cracks in the walls, and there are even gaps between the cracks. The roof has also got damaged. The ceiling has fallen, and brick work is exposed in an uneven manner. The staircase is in a very bad condition, and portions of the wall got damaged due to soaking of water. There is no plaster in most of the walls, and he says that at the entrance of the staircase passage, a wooden panel is completely removed. The iron work and the wooden work of the windows and doors are damaged. In many rooms, the woodwork is worn out and old, and in some portion of the open space, even the after has fallen down. In the toilet portion, the roof is in a bad shape and has been eaten away by white ants and the walls therein are also damaged. Even in the petition itself, it is stated that except for a small portion which is retained in good condition, the remaining area is very bad. That is fully supported by the Commissioner's Report. Law does not insist as declared by the Supreme Court in the decision cited supra, that the building should be in a dangerous condition. There must be bona fide intention on the part of the landlord that the life of the building is not long, and it is likely to fall down in the near future, or that the human habitation in that building will be dangerous.
11. Now, let us consider the age of the building. There is documentary evidence in this case to show that the age of the building must be atleast more than 60 years old. Ex.A-1 is a registered partition deed dated 10.2.1922. Even in that partition deed, the schedule building is made mention of, and the property is allotted to the petitioner's purchaser predecessor. Thereafter, there was a subsequent partition in the year 1970 as evidenced by Ex.A-3. The tenant has a case that the building is about 25 to 30 years old. That statement is belied by the documentary evidence in this case. So, taking into consideration the age of the building with its present condition, it follows that the allegation of the landlord that the building is in a dilapidated condition or atleast that it is not in a good condition, stands proved.
12. The trial Court accepted the case of the landlord that the building is in a bad shape. It relied on the Commissioner's Report. The Appellate Authority has made mention of Ex.C-1 and C- 2, but did not give any answer whether it accepts it or rejects it. After referring to Ex.C-1 and C-2, it went to the evidence of P.W. 1. P.W. 1 has said that at the time when the Commissioner visited the property, he did not go with him. He also said that he has seen only the front portion of the building, and not the interior portions. On the basis of this evidence, an inference was drawn by the Appellate Authority that the claim of the landlord that the building is in a bad shape is not proved. When P.W.I has not visited the building, he will not be in a position to say whether the building is in a bad shape or not. It is for the said purpose, as held in J.D. Devadoss v. Srikantiah, 1986 (I) M.L.J. 93, there must be independent evidence either in the form of a Commissioner's Report or an Engineer's Report. Any evidence by P.W.I or R.W.1 can only be in support of that evidence. Otherwise, it will be tainted as interested. When we have the independent evidence of the Commissioner and it is not challenged by any of the parties, importance should have been given to that evidence, and not the socalled admission of P.W.I. The observation of the Appellate Authority that P.W.I has admitted that the building is in good condition is also not correct. From a reading of the deposition, I find that only certain suggestions have been made for which P.W.I has either pleaded ignorance or denied it.
13. Ex.A-5 is a receipt obtained by the landlord for having applied for sanction of approved plan and licence. Of course, it is a few days before the disposal of the petition. The case of the landlord is that even at the time of filing the petition, he had moved the Corporation for getting plan and licence, and the same has to be renewed from time to time: Ex.A-5 represents the last renewal. The Rent Controller accepted the explanation. But the Appellate Authority was of the view that when licence is taken only a few days before the disposal of the petition, that shows the lack of good faith, bona fides were found against on that ground. In this connection, we have to note that under the Tamil Nadu Buildings (Lease and Rent Control) Act, submission of plan and licence before Court is not made a statutory requirement to show the bona fides. Section 14(1)(b) of the Act only says that the building is bona fide required by the landlord for immediate purpose of demolishing it, and such demolition should be made for the purpose of erecting a building on the site before a specified date. In Provisos which are detailed in sub-section (2), it is said that the landlord shall given an undertaking that he will demolish the building and proceed with the construction. So, whenever condition is imposed, the Statute itself provides for the same. Section 11(4)(iv) of the Kerala Buildings (Lease and Rent Control) Act, 1965 reads thus:-
"if the building is in such a condition that it needs reconstruction and if the landlord requires bona fide to reconstruct the same and if he satisfies the court that he has the plan and licence, if any required, and the ability to rebuild and if the proposal is not made as a pretext for eviction."
For getting eviction on the ground of demolition and reconstruction, production of plan and licence is required to show the bona fides. It has been held by the Kerala High Court that it need not be produced along with the Petition. It was held as sufficient if the same is produced at the evidence stage. In Ammini Pandarathy and Ors. v. Leelamma and Ors., 1977 KLT 441 it was held thus:-
"Going by Section 11(4)(iv), it is not necessary that at the time of filing the petition for eviction itself the landlord should have the plan and licence ready with him. Even if the landlord obtain the plan and licence during the pendency of the petition for eviction if he has got the same at the time of evidence he can satisfy the court and that is only what is insisted by the section. So the mere fact that the plan and licence were obtained only after the filing of the petition for eviction cannot be a reason not to grant eviction under Section 11(4) (iv)."
14. In Sukumaran v. Addl. District Judge, 1988 (1) K.L.T. (Short Notes) page 30, a similar question came for consideration. The building was situated within the area of Greater Cochin Development Authority. So, any plan and licence must also be approved by that Authority. Otherwise, a building be constructed. In a Rent Control Petition, only a plan and licence were filed without the sanction of the Development Authority. A contention was taken that there is no plan and licence at all, and therefore, construction cannot be had on the basis of that plan. Interpreting the Section, their Lordships said, 'strictly speaking, section requires only a plan and licence. If the licence does not happen to be approved, the building cannot be constructed. Therefore, it is sufficient to direct that before execution is taken out, petitioner must produce approved plan from the Development Authority.' Therefore, there is no force in the contention that non-production of sanction from Development Authority will be a bar under Section 11(4)(iv).'
15. So far as our Act is concerned, this question came for consideration in G.K. Jose v. Ramathal, 1979 (I) M.L.J. 372. At page 374 of the Reports, the Court held thus:-
".. It is also urged that the plan of the building which has been filed before the Court has been obtained after fixing of the petition for eviction and that that shows that the ground of the requirement of the building for the purpose of demolition and reconstruction could only be an afterthought. I do not see how the obtaining of a plan subsequent to the filing of the eviction petition will show that the requirement of the premises by the landlady for the purpose of demolition and reconstruction is not bona fide."
16. In S. Balasubramanian v. Gulah Jan, 94 L.W 102 in paragraph 14, the Court held thus:-
"The capacity and means of the landlord to carry out the work of demolition and reconstruction do not appear to have been challenged in the present proceedings. Want of sanctioned plan or lack of preparation for the work of demolition and reconstruction by itself cannot negative the bona fides of the landlord. Each case will have to be decided on its own facts. Under certain circumstances, it is futile to expert the landlord to make the preparations for demolition and reconstruction on the fond hope of succeeding in his proceedings for eviction. To insist upon such a factor as a sine qua non for initiation of proceedings for eviction on the ground of demolition and reconstruction, would drive the landlord to incur expenditure which may turn out to be futile depending upon the ultimate result in the proceedings for eviction...."
17. In Paras Devi v. Messrs. Vijaya Auto Parts, 1987 (I) M.L.J. 482 also this was considered and held thus:-
"The view of the Appellate Authority that bona fides ought to be negatived, merely from the failure on the part of the petitioner to obtain sanction prior to the fixing of the petition for eviction, cannot be sustained. Several factors go to make out mental state of bona fides. In the instant case, the condition of the building that it requires immediate demolition, the financial ability of the petitioner and the fact that three out of the four tenants had voluntarily vacated the premises, would clearly indicate that the requirement of the petitioner is bona fide. Contrary view taken by the Appellate Authority not being in consonance with the various pronouncements of this Court, referred to above, cannot be legally sustained."
18. Even when a condition is imposed in the Statute for production of plan and licence as a pre-condition for eviction, and the same has been interpreted by Court that the production at the later stage will be sufficient, in Statutes where there is no such condition, according to me, the production at the late stage cannot be considered as an afterthought or eviction petition was filed without any bona fides. In this case, the eviction petition was filed in 1982. Till 1989, the petition was in cold storage. If we ask the landlord to have plan and licence every time renewed, as held in S. Balasubramanian v. Gulab Jan, 94 LW 102, it will be a futile exercise depending upon the result of the litigation and unnecessary expenses will have to be incurred. After licence is obtained, even the licence rules may change. So, the earlier plan becomes ineffectual. By the time eviction is ordered, the plan already filed may become ineffectual due to change of life of the property, or change of rules of construction. Even at that time when fresh licence will have to be taken up. Under the circumstances, to insist the landlord that he must produce the plan and licence along with the petition cannot be correct. The Court will have to see whether the landlord has come to Court with clean hands with a good intention that he wants to demolish and reconstruct the building. For the said purpose, it will be sufficient if the plan and licence are filed either at the time of evidence or at the time of execution. The Rent Controller can insist that before the tenant is dispossessed, the landlord should produce a plan and licence.
19. In a Division Bench judgment of the Kerala High Court reported in Jose v. Thomas, 1992 (1) KLT 158, their Lordships held thus:-
"In almost all cases where in the tenants contest the claim for eviction, the period originally granted by the local authority for construction of building would expire before final disposal of the parties. It is a well known canon of interpretation that the court should adopt an interpretation which would give effect to the purpose of the Act and avoid an interpretation which would defeat its object. When the Rent Control Court or Revisional Authority is satisfied that the landlord has a plan and licence to reconstruct the building, his petition is not to be dismissed on a finding that the period of licence expired during the pendency of proceedings under the Act. The Act does not contemplate rejection of the petition on the ground that the period of licence granted by the Municipality expired during the pendency of the proceedings. In order to safeguard and protect the interest of the tenant in such cases, the court may incorporate a direction in the order of eviction that actual delivery of possession will be given only when landlord satisfies the execution court that the licence has been renewed or a new licence has been granted by the local authority concerned."
Therefore, the finding of the Appellate Authority that the landlord obtained the licence few days before the hearing of the petition before the Rent Controller is an after thought, and cannot be accepted. In this connection, it must also be noted that an appeal was filed before the Appellate Authority, the landlord filed along with the appeal a renewed plan and licence which he obtained. The same was discarded and refused to be accepted by the Appellate Authority. I do not find any justification in rejecting the application. It only shows that continued bona fides of the landlord that he earnestly intended to demolish the building and reconstruct the same.
20. Regarding financial capacity of the landlord, in the counter-statement of the tenant, there is no answer for the same. Landlord has specifically pleaded that he has got means to reconstruct the building. That apart, evidence has also been let in to prove the same. Both the Authorities below did not doubt the means of the landlord to put up a construction.
21. Under the above circumstances, the finding of the Appellate Authority that the building does not require demolition and reconstruction has, therefore, to be set aside.
22. The Rent Controller, while disposing of the application has said thus:-
"...This Court is of opinion that when the landlord requires the building for demolition and reconstruction, the condition, age and nature of the building need not be looked into, and if the requirement is true and bona fide, the respondent has no cause of action to resist the petitioner on any ground. .."
The part of the finding of the Rent Controller cannot be correct. But, on facts, the landlord has proved the entire case including the age and nature of the building in question.
23. In so far as the eviction on the ground of default in payment of rent is concerned, the finding of the Appellate Authority will have to be confirmed. I state the reason present. Even though in the eviction petition, the allegation is that the rent has not been paid from June, 1971, when P.W.I was examined, he pleaded ignorance as to the date upto which tenant has paid rent. He said that it was his father who was collecting rents, and he did not know the details. Of course, he denies the existence of any pocket notebook, as alleged by the tenant. But the tenant has produced his accounts, which has been scrutinised by Statutory Authorities, and they were maintained in the usual course of business. In those accounts, the payment of rent has been entered. The Appellate Authority has believed the accounts and come to the conclusion that the rent was paid even after June, 1981, and from August, 1982, rent was being deposited in Court. I do not find that on the materials available the finding of the Appellate authority is in any way perverse.
24. In the result, the revision petition is allowed with costs, and I hold that the landlord is entitled to get eviction under Section 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act. The tenant is given two months time to vacate the premises on his filing an affidavit of undertaking within two weeks from to-day that he will vacate the building within the time stipulated.