ORDER
S. Sardar Zackria Hussain, J.
1. The unsuccessful tenant aggrieved against the order of eviction on the ground that the petition non-residential premises is required bona fide for demolition and reconstruction by the Rent Controller and as confirmed by the Rent Control Appellate Authority, has filed this Civil Revision Petition challenging the correctness of such eviction ordered by the Rent Control appellate Authority.
2. The respondent/landlord filed the Rent Control Original Petition under Section 14(1)(b) and 2(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (herein after referred to as “the Act”) to evict the tenant from the petition non-residential premises that the petition non-residential premises is required bona fide for own use and occupation. It is stated in the petition that the landlord is the owner of the building of the petition non-residential premises bearing door Nos.439 and 440 in Cumbum Road, Theni in view of the purchase as per the sale deed dated 2.7.1981. He is carrying on business in the building lying in the south of the petition non-residential premises and the building is not sufficient for the business and its extension. Therefore, he resolved to pull down the petition premises and to annex it with the southern building with suitable alteration on the southern side so as to make it a composite building for business. The landlord has the means to demolish and put up reconstruction and he undertakes to carry out the demolition and to begin reconstruction within the time as contemplated under Section 14(2)(b) of the Act. The landlord made oral demand to the tenant to vacate the petition premises, but the tenant caused lawyer notice on 24.9.1981 attorning the tenancy, to which reply was sent.
3. The petition was opposed in the counter denying that the building south of the petition premises belongs to the landlord and that he is carrying on business in that building. The requirement of the petition premises is mala fide. It is stated in the counter that the tenant is carrying on business in the name and style of “Espee Electricals” and if vacated from the petition premises it is very difficult to secure an alternative accommodation. The petition property belongs to Theni Annathana Choultry and the same is endowed to public charity and as such, the vendor K.S. Vijaya Raja alias Paramasivam did not have right to sell the property to the landlord and these facts, the tenant came to know later and as such there have been a bona fide dispute with regard to the validity of sale. Hence the tenant has filed petition under Section 9(3) of the Act for depositing the rent in the Court. The H.R. & C.E. is also necessary party to the petition.
4. Before the Rent Controller, the landlord examined himself as P.W.1 besides one Sudakar as P.W.2 and marked Exs.A-1 to A-23. The tenant examined himself as R.W.1 and marked Exs.B-1 to B-4. The report of the advocate-commissioner was marked as Ex.C-1 and the report of the Junior Engineer, P.W.D. was marked as Ex.C-2. The learned Rent Controller considering such evidence found that the requirement of the petition non-residential premises is bona fide and accordingly ordered eviction. Such eviction order is confirmed in the Rent Control Appeal No.1 of 1998. The tenant has filed this revision challenging the correctness of the eviction order as confirmed by the learned Rent Control Appellate Authority.
5. The learned counsel for the revision petitioner/tenant contended that there is no case as contemplated under Section 14(1)(a) of the Tamil Nadu Buildings Act, in that there have been no ingredients in the Rent Control Original Petition. Further it is argued that since it is averred in the Rent Control Original Petition that the petition premises is required for the expansion of the business carried on by the landlord in the building southern side of the petition premises, the requirement sought for under Section 14(1)(b) of the Act is without bona fide. The learned counsel further submitted that inasmuch as the landlord also seeks to put up building on the southern side to which building the landlord wants to annex the building that will be put up newly after demolition of the petition premises and as such, the petition filed under Section 14(1)(b) of the Act is not maintainable. It is further contended by the learned counsel for the revision petitioner/tenant that the learned Rent Control Appellate Authority has not considered the aspect that the petition premises is in good condition and the proper undertaking has not been furnished as per Section 14(1)(b) of the Act. The learned counsel has relied on the decision K. Krishnan v. Munusamy reported in 91 Law Weekly 454, in which a Division Bench of this Court held:-
“A change of the roof of a building will not by itself amount to demolishing a building and putting up a new building on the site of the old building, and to such a case, Section 14(1)(b) will not be attracted.
It is perhaps true that some changes in a building which would not fall under the expression ‘repairs’ as defined in the Act, would not amount to demolishing and erecting a new building on the site, and if they fall out of the ambit of Section 14(1)(b) of the Act eviction for those purposes may not be possible.
It is not correct to say that if the roof of a building is to be changed, it would amount to ‘demolition’ within the meaning of Section 14(1)(b).
There are various types of roofs and it may be that it may become necessary to change the roof, Certain people for coolness might prefer a thatched roof instead of a tiled roof. Others may prefer a roof with asbestos sheets, because it is cheap, and a third person may like to have a concrete cement roof for greater stability or because that is more commonly used. A change from one type to another may perhaps be a change of a substantial nature so far as the roof is concerned. But, when one talks of demolition of a building as contemplated in Section 14(1)(b), it is difficult to assume that the change of a roof will amount to demolition of the building.”
It is further held:- ‘Demolition’ mentioned in Section 14(1)(b) has not been defined under the Act nor is there any definition as to what is meant by a ‘new building’. But turning to the scheme of the Act, it is clear that a freedom is given to the landlord when the requirements of Section 14(1)(b) are made out, to ask for possession of the building let out, and demolish that building and on the site on which the building stood, erect a new building. Apart from the requirement of Section 14(1)(b) there is the requirement under Section 14(2)(b) that the landlord should undertake to commence demolishing a material portion of the building to commence not later than one month and complete the demolition before the expiry of three months from the date he recovers possession of the entire building. On failure to comply with the requirement in Section 14(2)(b), the tenant can ask for recovery of possession of the building from the landlord under Section 16. These provisions in Section 14(1)(b) provide that the Rent Controller shall be satisfied that the requirements of the landlord is bona fide, namely, for the purpose of demolishing and erecting a new building, on the site of the building. Section 14(2)(b) insists that the work of demolishing a material portion of the building should be commenced not later than one month and completed before the expiry of three months from the date the landlord recovers possession of the entire building. If he does not comply with those requirements, his bona fide requirement would be belied and in such circumstances, the tenant will be restored to the building and the eviction ordered would thus become ineffective(Section 16).”
6. The learned counsel for the respondent/landlord contended that it is specifically pleaded in the Rent Control Original Petition that the petition premises required for the purpose of demolition and reconstruction and to annex the same with the building on the south of the petition premises in which the landlord is carrying on business by making suitable alteration.
7. As regards the means of the landlord according to the learned counsel for the respondent/landlord that it has not been challenged and further the landlord also proved that he has got sufficient means by marking Exs.A-14 to A-17 and A-19 to A-23. As regards the undertaking, according to the learned counsel for the landlord it is clearly mentioned in the Rent Control Original Petition that after demolition the reconstruction will be commenced and completed within the time as per Section 14(2)(b) of the Act and in fact the petition itself has been filed under Section 14(1)(b) and 14(2)(b) of the Act.
8. As regards the maintainability, according to the learned counsel for the landlord, it is pointed out that no such stand has been taken by the tenant before the Rent Controller as well as the Rent Control Appellate Authority by raising such plea in the counter as well in the evidence.
9. The landlord purchased the building of the petition premises as per sale deed Ex.A-1 dated 2.7.1981 from K.S. Vijaya Raja alias Paramasivam and others. In the counter it is disputed that the said vendor K.S. Vijaya Raja alias Paramasivam has no right to the property to convey the same to the landlord. In the reply notice Ex.A-3 dated 24.9.1981 it is clearly admitted by the tenant that the said building originally belonged to K.S. Vijaya Raja alias Paramasivam from whom he took the petition premises on monthly rent of Rs.80/- wherein it is mentioned that the landlord purchased the building from the previous owner K.S. Vijaya Raja alias Paramasivam and the tenant also attorned the tenancy. The southern building to the property purchased under sale deed Ex.A-1 is referred as belonging to the landlord’s brother Nirai Pandian to whom the vendor has sold the door No.441. In the notice Ex.A-2 also it is clearly mentioned that the landlord is carrying on business in the building of the south of the petition premises and as such the petition premises is required for own use and for the purpose of demolition and reconstruction along with southern building in which he is carrying on business.
10. The advocate-commissioner has filed his report Ex.C-1 stating that the suit property is a portion of full building separated into three portions i.e. 3 shops and the petition premises is in the middle. It is further stated that the full building is terraced and the top of the petition premises is newly plastered. A brick wall fully plastered with lime water and about 2-1/2 feet height is in the front of the terrace (parapet wall). At the back of the terrace a wall of 1-1/2 feet height also plastered with lime water. In the report of the Junior Engineer Ex.C-2 it is stated that the building of the petition premises was constructed as wall bearing structure with R.R. Masonry foundation and it is facing western side of 60’0″ wide Cumbum Road and on the northern side 60’0″ wide Madurai Road and it is located in the north-west corner of the Theni bus stand. The foundation in R.R. Masonry is with mud mortar and lime mortar partly. The superstructure is built with in lime mortar and mud mortar partly using country bricks second class and plastering of wall with lime mortar. Roofing is with terraced roof with country wood plants and the terrace is constructed with lime and bricks. It is further stated in the report Ex.C-2 that the open terrace is covered with only lime mortar plastering having more number of cracks which are covered by plastering with even rain water which drop into the cracks may cause damage to the terrace. The building was aged about 50 years. The walls are cracked in so many places more than 20 Cms. at the level of the front doors, and rear side. The cracks are also seen at the roof and terrace. The cracks are temporarily plastered in patch work by cement mortar. The parapet wall with brick work in mud mortar. The wall planks for the front G.I. Sheet roof get almost destroyed by age. The wooden planks bearing the Madras Terraced roof are aged and get damaged at the joint with bearing walls and are not having strength to carry any additional load on the roof. It is seen from Ex.A-8 approved plan of the Theni Municipality, that the proposed construction is by removing the damaged Madras Terrace in door Nos.439 and 440 and as per the plan it is seen two floors , viz., ground floor and first floor have to be put up in the new building. Therefore, it is clear from Exs.C-1 and C-2 and Ex.A-8 that the landlord after demolishing the existing structure of the petition premises intends to put up new construction with ground floor and first floor and also wants to annex the said building with the southern building owned by him in which he is carrying on business by making suitable alterations which he can do at any time and at the time of new construction of the building after demolishing the petition premises. Therefore, there is no force in the argument advanced for the revision petitioner/tenant that the intention of the landlord is only to change the roof of the building or to annex the same by making suitable alteration with the southern building owned by him in which he is carrying on business.
11. The learned Rent Control Appellate Authority in confirming the order of the learned Rent Controller that the petition premises is old and more than 50 years and is not in good condition and it is in dilapidated condition, and taking into consideration that the landlord has got sufficient means to carry out the work and that the landlord also has given undertaking affidavit as contemplated under Section 14(2)(b) of the Act, rightly confirmed the order of eviction of the learned Rent Controller finding that the requirement of the petition premises by the landlord for the purpose of demolition and reconstruction is bona fide. It is clear from Exs.A-9 to A-13 that during the years 1981 to 1989 the landlord has purchased the properties in his name and in the name of his wife and also has got share certificate. It is also seen from Exs.A-4 to A-17 and A-19 to A-23 that the landlord has got enough funds and is in a position to raise substantial amount to put up reconstruction if any amount is required. Therefore, the judgment and decree of the learned Rent Control Appellate Authority does not call for any interference and are to be confirmed.
12. In the result, this Civil Revision Petition is dismissed with cost confirming the judgment and decree dated 11.7.2001 made in R.C.A.No.1 of 1998 by the learned Rent Control Appellate Authority.
C.R.P.(NPD)No.284 OF 2002
S. Sardar Zackria Hussin, J.
After pronouncement of the order, the learned counsel for the revision petitioner/tenant sought time for eviction. Considering such request, three months time is granted for eviction, on the revision petitioner/tenant filing an undertaking affidavit within two weeks from today that he would hand over possession of the petition premises without resorting to execution proceedings. C.R.P.(NPD)No.284 of 2002 S. Sardar Zackria Hussain,J. Undertaking affidavit is filed with delay of 15 days. To condone such delay, an affidavit is also filed. Condoning the delay, the undertaking affidavit is recorded.