BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 08/09/2009 CORAM THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN CRP(NPD)No.1708 of 2007 J.Josephine Christobell ... Petitioner Vs P.Subramanian ... Respondent Prayer This Civil Revision Petition is filed against the order made in RCA.12/2007 passed by the learned Rent Control Appellate Authority on the file of the Subordinate Judge, Tirunelveli dated 21.9.2007 reversing the order passed by the learned Rent Controller in RCOP.No.63/2004 dated 19.1.2007 on the file of Principal District Munsif, Tirunelveli. !For Petitioner ... Mr.S.Meenakshi Sundaram ^For Respondent ... Mr.S.Kumar :ORDER
The landlord is the revision petitioner herein. This Civil Revision
Petition has arisen out of the proceedings under the Tamil Nadu Buildings (Lease
and Rent Control) Act (herein after referred to as the Act) for eviction of the
respondent/tenant from the property belonging to the petitioner/landlord under
Sections 10(2)(i), 10(3)(a)(iii) and 14(1)(b) of the Act.
2. The petition mentioned premises is a non residential one and the
landlord had purchased the same from her predecessors through their Power Agent
namely E.Kailasam by a registered sale deed dated 31.5.2004. The respondent is
the tenant even with the predecessors of the petitioner from 28.2.1990 and
attorned his tenancy to the petitioner from 1.6.2004.
3. The case of the petitioner is that she has been carrying on
tailoring business under the name and style of Venus Tailors in a rental
building on a monthly rent of Rs.1200/- in the same area and for the purpose of
accommodating her staff and to keep the thread stock she had taken another
building on a monthly rent of Rs.1800/- and in all, she has been paying a sum of
Rs.3000/- p.m. as rent and to develop her business and to augment her income,
she need the petition mentioned premises. Further the petition mentioned
premises is more than 70 years old and it is in a dilapidated condition and
therefore, she wants to demolish the premises in question and reconstruct it.
She has stated that she has got sufficient means and obtained necessary plan
from the Municipality concerned for putting up a new construction.
4. The trial court upheld the requirements of the landlord and
passed an order of eviction on two grounds under Sections 10(3)(a)(iii) and
14(1)(b) of the Act, which was reversed by the Rent Control Appellate Authority
at the instance of the tenant. The Rent Control Appellate Authority held that
there was no bona fide requirement for her own occupation to carry on the
tailoring business and the case for demolition and reconstruction was not made
out. Aggrieved by the order of the Rent Control Appellate Authority, this Civil
Revision Petition has been filed by the landlord.
5. Though the eviction was sought for on the ground of wilful
default, but the learned counsel for the petitioner would submit that he is not
pressing the said ground. The learned counsel for the petitioner submitted that
the appellate authority had come to the conclusion that the petitioner had
failed to prove that she is running the tailoring business in a rental building
without considering the admission made by the respondent/tenant that the
landlord is running the business in a rental premises which situate four shops
ahead of the petition premises. The Rent Controller has referred to the said
admission made by the respondent in his cross examination that the landlord is
running the tailoring business in a rented shop lying in the same street and the
extent is also very small. The landlord filed Ex.P10 cards to show that she is
carrying on tailoring business and it is not the case of the respondent that it
does not relate to the said premises. Even in the petition filed by the landlord
for eviction, her address is given as Venus Tailors at Door No.84, South Mada
Street, Palayamkottai, Tirunelveli District which is not her own building. This
aspect has not been disputed by the respondent.
6. It is the case of the petitioner that she does not own any non
residential building than the petition premises. In her evidence she has only
stated that she owns a residential building in KTC Nagar, which cannot be said
that it is suitable for her to run the tailoring business.
7. Therefore, it is evident that the petitioner is running her
tailoring business in a rented premises and she does not have any other non
residential premises available within the city to satisfy her requirement. The
request of the landlord, who is already engaged in a commercial activities but
in a rental building cannot be said to be not acting bona fide when she claims
the tenancy premises of her own to satisfy her own requirement for continuing
her tailoring business by shifting the same to the petition mentioned premises.
8. In the decision of the Principal Bench of this Court rendered in
the case of S.V.Janardanam and another Vs. D.Kivraj Sowkar and two others
[2002-2-LW-611], it is held that when the landlord, who owns the property filed
an application under Sections 10(3)(a)(i) or 10(3)(a)(iii) of the Act, the
authorities under the Act have to draw a presumption in favour of the bona fide
requirements of the landlord. It is further held thus:-
“It is now well settled that when an application is filed under Section
10(3)(a)(i) and 10(3)(a)(iii) and the requirements of the provisions are
satisfied, it is not for the tenant to say that the property is suitable or not
suitable to the petitioners’ requirement. Further when the landlord who owns the
property filed an application under Sections 10(3)(a)(i) or 10(3)(a)(iii) of
the Act, the authorities under the Act have to draw an presumption in favour of
the bona fide requirement of the landlord ”
It is the same view of the Honourable Supreme Court in the case of Sarla Ahuja
Vs. United India Insurance Company Ltd. [1998-III-CTC-679], wherein the
Honourable Supreme Court has dealt with the bona fide requirement of the
landlord in paragraph 14 of the judgement and has held thus:-
“14. The crux of the ground envisaged in clause (e) of Section 14(1) of the Act
is that the requirement of the landlord for occupation of the tenanted premises
must be bona fide. When a landlord asserts that he requires his building for
his own occupation, The Rent Controller shall not proceed on the presumption
that the requirement is not bona fide. When other conditions of the clause are
satisfied and when the landlord shows a prima facie case, it is open to the
Rent Controller to draw a presumption that the requirement of the landlord is
bona fide. It is often said by courts that it is not for the tenant to dictate
terms to the landlord as to who else he can adjust himself without getting
possession of the tenants premises. While deciding the question of bona fides
of the requirement of the landlord, it is quite unnecessary to make an endeavour
as to who else the landlord could have adjusted himself.”
9. It is pertinent to point that in so far as the non residential
building is concerned, the Act does not say that if the landlord owned more than
one building, he or she would not be entitled to an order of eviction. It is
entirely upon the petitioner/landlord to choose which building he or she would
require for occupation for his or her sons to carry on their business.
Therefore, I am unable to agree with the findings of the Rent Control Appellate
Authority that there is no bona fide requirement of the petitioner to carry on
the business.
10. As regards the other ground that the petition mentioned
premises is a very old building and there is a requirement to demolish the same
and further the petitioner needs the building to carryon on her tailoring
business after putting up a new construction, in the petition she has averred
that she had taken steps to get plan sanctioned from the Municipality concerned
and had already applied for approval of the plan. She has further stated that
she has made arrangements for getting loan from the Bank and so, in all respects
had taken steps to demolish the existing superstructure and put up a new
construction to suit her requirement. In her evidence, she has reiterated the
same.
11. The petition premises is 70 years old according to the landlord
and the respondent has not specified about the age of the building in his cross
examination except stating that it would be of 60 years old. The Advocate
Commissioner has inspected the building and filed his report, which has been
marked as Exs.C1 and C2 and the Engineer’s Report has been marked as Ex.C3. The
Engineer in Ex.C3 has given the age of the building as 70 years and has found
cracks on the walls. Above said reports of the Advocate Commissioner and the
Engineer clearly indicate that the building is a old building and it requires
demolition.
12. It is settled law that the report of the Commissioner is part of
the records and that therefore, the report cannot be overlooked or rejected
without any justification. Exs.P11 to P14 are the deposits made by the
petitioner in the Nationalized Bank and Post Office and it would prove her
means to erect a new building. That apart, her husband is employed in the Tamil
Nadu Transport Corporation and the petitioner is also getting sizeable income
from the tailoring business.
13. When the building is 60 to 70 years old, which requires
immediate demolition, there is nothing wrong in the petitioner proposing to
demolish such an old building and instead construct a modern and spacious
complex so as to make better use of the property and augment her income. There
is no reason to assume that the need for demolition and reconstruction deposed
to by the landlord is unnatural or lacking in sincerity and there is no material
on record to hold that she was merely attempting to find out a pretent or ruse
to get rid of the tenant.
14. The reasoning adopted by the Rent Control Appellate Authority
was under a factual misappropriation of evidence. It is seen that the Rent
Control Appellate Authority was much impressed by the fact that the respondent
filed a suit for permanent injunction against the petitioner not to dispossess
him except under due process of law and this had been taken as a factor to hold
that the petitioner’s intention was only to evict the tenant. It is brought to
the notice of this court by the petitioner that she filed a memo conceding that
she would not disturb his possession except under due process of law and it does
not mean that the petitioner should not file a eviction petition against the
tenant and she had filed it only with a mala fide intention.
15. Another factor, which the Rent Control Appellate Authority has
adverted to, is with regard to the demolition of common walls of the adjacent
owners, which according to the Rent Control Appellate Authority without getting
consent of the adjacent owners, the commons walls cannot be demolished and
therefore, it is not possible to demolish the petition mentioned premises does
not merit acceptance. It is the case of the petitioner that except the common
walls on the northern and southern sides, the other portions could be
demolished, for which the consent of the adjacent owners is not necessary. In
fact necessary plan has been sanctioned by the Municipality concerned under
Ex.P7 proceedings to erect a new building without demolishing the compound wall
on the northern and southern side. Therefore, the Rent Control Appellate
Authority has wrongly assumed that the entire structure cannot be demolished
without getting consent from the adjacent owners.
16. To make out a case under Section 14(1)(b) of the Act, the
landlord has to satisfy the authorities that the building is bona fidely
required by the landlord for immediate purpose of demolishing it and the purpose
of such demolition is to erect a new building on the site of the building sought
to be demolished. On being satisfied the authorities shall direct the tenant to
deliver possession of the building to the landlord.
17. The Constitutional Bench of the Honourable Supreme Court in the
case of Vijay Singh Vs. Vijayalakshmi Ammal [1996-6-SCC-475] has held that for
recording a finding that the requirement of the landlord was bona fide, the
authorities have to take into account (i) the bona fide intention of the
landlord far from the sole object only to get rid of the tenant, (ii) the age
and condition of the building and (iii) the financial position of the landlord
to demolish and erect a new building according to the statutory requirements of
the Act. It also added that no court can fix any limit in respect of the age and
condition of the building, which is the factor to be taken into consideration
along with the other factors. The term “immediate” as qualifying demolition
suggests a proximity of purpose and not proximity of time or the urgency of
demolition.
18. In the case of S.Venugopal Vs. A.Karruppusamy and another
[2006-2-CTC-615], the Honourable Supreme Court has held that as regards the bona
fide requirement for demolition and reconstruction, the condition of the
building is not material when the landlord wants to demolish the owned
structure in order to build a multi-storeyed building so as to get better return
of the investment. It held that even if the landlord had not given the details
regarding funds for construction, it will not militate against his claim, since
raising funds for constructing commercial structure is not difficult as the Bank
and Financial Institutions are willing to advance such funds.
19. It has been held by the Honourable Supreme Court in the case of
Ramniklal Pitambardardas Mehta Vs. Indradaman Amratlal Shekh [AIR-1964-SC-1676]
that where the case pleaded by the landlord is that he wants to demolish and
reconstruct the tenancy premises before occupying the same for his own
requirement, the nature of requirement pleaded would be one of the bona fide
requirements.
20. The law is well settled that if the authorities failed to
consider the materials placed before it, this court can interfere under Section
25 of the Act to decide as to whether the authority below approached the
question from proper angle.
21. For the reasons aforesaid, I am of the
considered view that the reasoning of the Rent Control Appellate Authority that
the requirement of the petitioner is not bona fide and no case is made out for
demolition and reconstruction is not sustainable and hence, the impugned order
of the Rent Control Appellate Authority is liable to be set aside and
accordingly, it is set aside. Relief of eviction is granted in favour of the
petitioner/landlord by allowing this Civil Revision Petition both on the grounds
under Sections under Sections 10(2)(i), 10(3)(a)(iii) and 14(1)(b) of the Act.
No costs. Considering his occupation of the premises for long years, the tenant
is given two months time to vacate the premises from the date of this order on
condition that he should file an affidavit of undertaking within two weeks from
today to that effect, failing which the time granted to vacate the premises
shall stand automatically vacated.
Srcm
To
1. The Subordinate Judge, Tirunelveli
2. The Principal District Munsif, Tirunelveli