Madras High Court
Anburathinam vs The Karur Municipality on 29 February, 2012
Author: K.K.Sasidharan
Bench: K.K.Sasidharan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29/02/2012 CORAM THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN W.P.(MD)No.391 of 2012 and M.P.(MD)Nos.2 to 4 of 2012 1.Anburathinam 2.P.Saraswathi 3.V.P.Balasubramaniam 4.K.Srinivasan 5.Pushparaj 6.D.Dhanalakshmi 7.A.Pushpavalli 8.Periyasamy 9.K.Kambalathan 10.K.P.Paramanathan 11.V.Balasubramaniam 12.C.Baskaran 13.K.Thirupathi 14.V.Maruthai 15.K.S.R.Balasubramanian ... Petitioners vs. 1.The Karur Municipality, Rep. by its Executive Authority, Commissioner. 2.The Chairman, Karur Municipality, Karur. 3.M.Selvaran, The Chairman, Karur Municipality, Karur. ... Respondents PRAYER Writ Petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus, to call for the records relating to the impugned resolution bearing No.52, dated 29.12.2011 passed by the second respondent insofar as the portion which relates to the cancellation of lease and demolition of the shopping complex read with notice dated 29.12.2011 in Na.Ka.No.A6/4041/2010 passed by the first respondent and quash the same and consequently, direct the respondents to permit the petitioners to continue to carry on their business till the expiry of the lease period. !For Petitioners... Mr.B.Prasana Vinoth ^For Respondents... Mr.K.Chellapandian Additional Advocate General For Mr.R.Anandharaj, Government Advocate ****** :ORDER
******* The petitioners are aggrieved by the decision taken by Karur Municipality at its meeting held on 29 December, 2011, to demolish and reconstruct the shopping complex situated at the old bus stand and for the said purpose, to cancel the licence granted in favour of the petitioners.
BACKGROUND FACTS:
2. The petitioners are the lessees of shop rooms in a shopping complex constructed by Karur Municipality. The shopping complex was constructed at the bus stand. The bus stand was later shifted to a new location. The first petitioner was given the privilege to conduct a lodge. The other petitioners were given only shops. They are doing various kinds of business in the said complex. The lease was given about 25 years ago. It was subsequently renewed taking advantage of the Government order issued from time to time and more recently, the renewal was made on the basis of the Government Order in G.O.Ms.No.92 , dated 03 July, 2007, extending the lease upto 03 September, 2016.
3. While the matters stood thus, another political party won the municipal election. The petitioners are the members of opposition political party. The ruling party wanted the petitioners to be evicted. Therefore, they have invented a reason that the building is in a highly dangerous condition.
Accordingly, the Municipal Council at its meeting held on 29 December, 2011, resolved to demolish and reconstruct the building and for the said purpose, the petitioners were directed to vacate and hand over vacant possession. The resolution and the connected notices issued to the concerned lessees are the subject matter of this Writ Petition.
4. The Commissioner, Karur Municipality, in his counter-affidavit, contested the claim made by the petitioners. According to the Commissioner, the Municipality has given licence for conducting a lodging house to the first petitioner. The other shops with asbestos sheet roofs were given to the other petitioners. The old bus stand is situated in a covetable area. The building is in a highly dilapidated condition. The Municipal Engineer inspected the building and submitted a report that it would collapse at any time. The Municipality wanted to use the building in a more profitable manner. Therefore, a decision was taken to demolish the building and to reconstruct it with a new building. The petitioners cannot insist that they should be permitted to continue notwithstanding the bad condition of the building.
RIVAL CONTENTIONS:
5. The learned counsel for the petitioners vehemently contended that the condition of the building is very sound and as such, it does not require immediate demolition and reconstruction. The present Municipal Council is against the petitioners and it was only for the purpose of evicting the petitioners, the local body has invented a reason. There is no bona fide in the resolution passed by the Municipality to demolish the existing shopping complex.
6. The learned Additional Advocate General submitted that the building is in a highly dangerous condition. The Municipal Engineer inspected the building and submitted a report to the Municipal Council informing them that the building requires immediate demolition and reconstruction. Accordingly, the Municipal Council has taken a decision to evict all the tenants including the petitioners, so as to enable the Municipality to demolish the building. The Municipality has now given an undertaking that the building would be demolished immediately and a shopping complex would be constructed. Therefore, it cannot be said that the action taken to evict the petitioners was with a mala fide intention.
THE CORE ISSUE:
7. The principal question is whether the Karur Municipality was justified in taking a decision to demolish the existing structure for the purpose of putting up a new building.
DISCUSSION:
8. The building in question was constructed during the year 1967. The learned counsel for the petitioners also admitted the said factual position. The learned Additional Advocate General has produced the photographs of the building. The photographs clearly gives an indication that the building is a very old building and its condition appears to be not sound. Originally, the bus stand was functioning in the said place. The bus stand was shifted later. The subject place is a covetable locality. The location is such that new buildings are coming up in the area. In case the building is demolished and a new shopping complex is constructed, definitely, it would fetch more rent. The financial condition of the Municipality would also be improved. Therefore, a conscious decision was taken by the Municipal Council to demolish the existing superstructure and to construct a new building in its place.
9. The petitioners have no case that the Municipality would induct new tenants after evicting them. The Commissioner of the Municipality has sworn to an affidavit undertaking that the building will be demolished within a period of nine months. Therefore, the intention of the Municipality is manifest.
10. The petitioners oppose the prayer for demolition primarily on the ground that the building is not in a dilapidated condition.
11. There is no rule that the condition of the building should be dangerous and only in case of threat of collapse, the landlord can demolish the building. The landlord is the best judge in such matters. The location of the building, age and condition, the factum of construction of new buildings in the area, etc., are relevant consideration for deciding the bona fides of a land owner, in case the request is for demolition and reconstruction.
12. While interpreting Section 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, the Supreme Court, time and again, indicated that the condition of the building alone is not the deciding factor.
13. In case new buildings are coming up in the locality and the very face of the town is undergoing a sea change, the same also would give a cause of action to the landlord to request the tenants to vacate the property for the purpose of demolition and reconstruction. In case the building is in a highly dangerous condition, it would be an additional reason to ask for demolition.
14. Mr.Justice V.R.Krishna Iyer in 1990 KLT 257 observed that "old structure in newly developing area may be pimples on fair faces."
THE PRECEDENT:
15. The Supreme Court in Vijay Singh v. Vijayalakshmi Ammal [1996(6) SCC 475], considered the scope of Section 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and observed that for the purpose of demolition and reconstruction, building need not be dilapidated or dangerous for human habitation. The Supreme Court said:
"10. On reading Section 14(1)(b) along with Section 16 it can be said that for eviction of a tenant on the ground of demolition of the building for erecting a new building, the building need not be dilapidated or dangerous for human habitation. If that was the requirement there is no occasion to put a condition to demolish within a specified time, and to erect a new building on the same site. Sub-section (1) of Section 16 contemplates that permission has been granted by the Rent Controller under Section 14(1)(b) for demolition of the building, but if such demolition is not carried out in terms of the order and undertaking, then the Rent Controller can order the landlord to put the tenant in possession of the building on the original terms and conditions. If the building is dangerous and dilapidated requiring immediate demolition for safety, then there is no question of the Rent Controller directing the landlord to put the tenant in possession of such building on the original terms and conditions, on account of the failure of the landlord to commence the demolition within the period prescribed. Similarly, there was no occasion to link the demolition of such building with erection of new building and then to give the landlord freedom from the restrictive provisions of the Act for a period of five years from the date on which the construction of such new building is completed and notified to the local authorities concerned. In this background, it has to be held that neither of the extreme position taken by the respondent or the appellants can be accepted. Permission under Section 14(1)(b) cannot be granted by the Rent Controller on mere asking of the landlord, that he proposes to immediately demolish the building in question to erect a new building. At the same time it is difficult to accept the stand of the appellants that the building must be dilapidated and dangerous, unfit for human habitation. For granting permission under Section 14(1)(b) the Rent Controller is expected to consider all relevant materials for recording a finding whether the requirement of the landlord for demolition of the building and erection of a new building on the same site is bona fide or not. For recording a finding that requirement for demolition was bona fide, the Rent Controller has to take into account: (1) bona fide intention of the landlord far from the sole object only to get rid of the tenants; (2) the age and condition of the building; (3) the financial position of the landlord to demolish and erect a new building according to the statutory requirements of the Act. These are some of the illustrative factors which have to be taken into consideration before an order is passed under Section 14(1)(b). No court can fix any limit in respect of the age and condition of the building. That factor has to be taken into consideration along with other facts and then a conclusion one way or the other has to be arrived at by the Rent Controller."
16. The Municipality is a local self-Government. The Municipality should take various measures in the interest of public. The Municipality should have the necessary financial resources to undertake welfare measures. In case the Municipality is of the view that by putting up a new building, it would enable them to earn more income, it would be valid ground for demolition and reconstruction. The Municipality is not a private individual to evict a tenant on flimsy reasons. The resolution proceeds as if the building is in a dilapidated condition requiring immediate demolition and reconstruction. Merely because the petitioners entertain a firm belief that it is in a sound condition, it cannot be said that the local body has not made out a case for demolition and reconstruction. Therefore, I do not find any merit in the contentions raised on behalf of the petitioners.
17. The petitioners are in occupation of the building for the last more than 25 years. The intention of the Municipality is to give the shops on lease after reconstruction. The Municipality should consider accommodating the petitioners by giving some preferential treatment on humanitarian grounds.
18. The Writ Petition is dismissed with the above observation. Consequently, the connected miscellaneous petitions are also dismissed. No costs.
SML To
1.The Executive Authority, Commissioner, Karur Municipality,
2.The Chairman, Karur Municipality, Karur.
3.M.Selvaran, The Chairman, Karur Municipality, Karur.