BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22/12/2008 CORAM THE HONOURABLE MR.JUSTICE S.PALANIVELU C.R.P. (NPD) (MD) Nos.83 of 2006 S.Rajendran ... Petitioner Vs. G.R.Rajan ... Respondent Civil Revision Petition filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 18 of 1960 against the fair and executable order dated 23.08.2005 passed in R.C.A. No.55 of 2004 on the file of the Principal Subordinate Judge (Rent Control Appellate Authority), Madurai reversing the fair and executable order dated 04.02.2004 passed in R.C.O.P.No.151 of 1998 on the file of the Additional District Munsif (Additional Rent Controller), Madurai Town. !For Petitioner ... Mr.R.A.Mohanram ^For Respondent ... Mr.R.Subramanian * * * :ORDER
The petitioner is the landlord. He filed R.C.O.P.No.151 of 1998, on the
file of the learned Rent Controller, Madurai Town, for eviction of respondent,
who is the tenant, from the demised premises for the purpose of demolition and
reconstruction under Section 14 (1) (b) of the Tamil Nadu Buildings (Lease and
Rent Control) Act, 1960. The building belongs to the petitioner.
2. In the petition for eviction, he has alleged that the
respondent/tenant is running a tailoring shop in the demised premises which was
taken by him on lease for Rs.300/- as rent per month. The building is situated
in a locality where the area is fast developing. As the existing building is
old fashioned and not so strong to put up further construction, this Petitioner
intends to pull down the same and put up a pucca building with all modern
amenities for his convenient residence and also to construct commercial complex
in the remaining portion. He has submitted the necessary building plan for
approval to the Madurai City Municipal Corporation. He has got sufficient funds
to demolish the building and to construct a new building. He has made all
arrangements in this respect. On 08.05.1998, he sent a notice to the respondent
to vacate and surrender the building. However, he did not send any reply.
Hence, the petition may be allowed.
3. In the counter filed by the respondent/tenant, it is alleged that it
is incorrect to state that the building is old fashioned and that the area in
which the building is situated is fast developing and that building has to be
pulled down to put up a new building for his convenient residence and also to
make a commercial complex. The building is a new one which is in good and
strong condition and it wears a new look. The requirement of the petitioner is
not at all bona fide one, but invented for the purpose of evicting the tenant.
Hence, the petition has to be dismissed.
4. The learned Rent Controller allowed the application ordering
eviction of the tenant within a period of two months. Hence, he carried the
matter in appeal in R.C.A. No.55 of 2006, on the file of the Principal
Subordinate Court, Madurai. The Rent Control Appellate Authority allowed the
appeal, by setting aside the order of eviction by observing that the requirement
of the landlord is not bona fide. Hence, the landlord is before this Court with
this Civil Revision Petition.
5. The learned counsel for the petitioner Mr.R.A.Mohanram would
strenuously contend that the pleadings made by this petitioner, the documents
produced by him and also oral testimonies adduced on his behalf, would amply
show that he bona fide requires the building for demolition and re-construction
and the converse findings of the Rent Control Appellate Authority are not
sustainable. He further submits that even though the landlord produced a copy
of the plan which remained unapproved at the time of the enquiry in the eviction
application, after the R.C.A. was over, he got the plan approved and that he has
also increased the deposit of Rs.4,00,000/- to Rs.5,00,000/- for the purpose of
demolition and re-construction.
6. On the contrary, the learned counsel for the respondent/tenant
Mr.R.Subramanian would submit that the landlord has miserably failed to
establish that he bona fide requires the buildings for the purpose of demolition
and re-construction, that he did not produce the approved plan before the Rent
Controller, that he had not shown sufficient means for demolition and
reconstruction and that the observations made by the Rent Control Appellate
Authority need not be disturbed.
7. Before entering into discussion in this case, it is incumbent upon
this Court to refer and follow the dictum laid down by the Constitution Bench of
the Hon’ble Supreme Court in a decision in Vijay Singh and others V.
Vijayalakshmi Ammal reported in 1997 1 L.W. 218 = 1996 (2) CTC 586, wherein
Their Lordships, after referring to various judgments of the Court, formulated
the following principles before making observation in favour of the landlord
which are as follows:
“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 errect a new building according to the statutory requirement of the
Act. These are some of the illustrative factors which have to be taken into
consideration before an order is passed under S.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 factors and then a conclusion
one way or the other has to be arrived at by the Rent Controller.”
8. As far as the first condition is concerned, there should not be any
intention on the part of the landlord to evict the tenants from the building
owned by him by projecting a false claim before the Court, secondly, the age and
condition of the building has to be assessed by the Court and thirdly, the
landlord has to establish his financial position for demolition and
reconstruction.
9. As far as the age and condition of the building are concerned, it is
stated in the eviction petition that the building is 30 years old and in the
counter it has been denied. No petition for appointment of an Advocate
Commissioner has been taken out before the Rent Controller to note down the
condition of the building. In this regard, the decision of the Hon’ble Supreme
Court as to the condition of the building in P.S.Pareed Kaka and Others V.
Shafee Ahmed Saheb reported in 2004 (3) L.W. 754 is relevant in which Their
Lordships have held that even if the building is in good condition, if it is not
suitable for the requirement of the landlord, he can always demolish a good
building and put up a new building to suit his requirements and that it is not
necessary for the landlord to prove that the condition of the building is such
that it requires immediate demolition, particularly, when the premises is
required by him.
10. As far as the facts of the present case are concerned, even though
there is no sufficient evidence on record as to the condition of the building,
still the intention of the landlord has to be gathered from the materials
available from the case, as per the decision of the Hon’ble Supreme Court and
while such exercise is undertaken by this Court, it appears that he is bona fide
requiring the building on that account.
11. Another point in this regard is about the production of the approved
plan for the new building and much was stated about this before this Court. The
petitioner produced a copy of the unapproved plan before the learned Rent
Controller to show that he has taken steps to get the same approved from the
Municipal Corporation, Madurai and that the same was pending for approval. It
has to be noted that till the R.C.A was disposed of, the approval was not
accorded to the petitioner. But it appears that only on 04.11.2005 the approval
was granted by the Madurai Corporation and earlier to which on 22.08.2005 itself
the R.C.A. was disposed of. In this connection, the learned counsel for the
respondent would argue in vehemence that since the petitioner has not obtained
the approved plan from the authorities, if the approval was obtained on a
subsequent occasion would not cure the irregularities and on this count the
landlord has to be non-suited for the relief.
12. This Court is not in acceptance with the contention of the learned
counsel for the respondent as Hon’ble Supreme Court in Harrington House School
V. S.M.Ispahani and another reported in 2002-4-L.W. 639, has categorically held
that even though the approved plan was not produced at the time of filing of
eviction application, still if he shows that he has taken steps to get the
approval of the same, his claim could be considered. Their Lordships have held
as follows:
“The decree as passed by the High Court is sustained but it is directed that the
landlords shall submit the plans of reconstruction for the approval of the local
authority. Only on the plans being sanctioned by the local authority the decree
for eviction shall be available for execution. Such sanctioned or approved
plans shall be produced before the Executing Court whereupon the Executing Court
shall allow a reasonable time to the tenant for vacating the property and
delivering possession to the landlord-decreeholders. Till then the tenant shall
remain liable to pay charges for use and occupation of the suit premises at the
same rate at which they are being paid.”
13. Even though the landlord failed to produce the approved plan before
the Rent Controller or the Rent Control Appellate Authority, the Supreme Court
found that he was ready with the plan for the proposed reconstruction and that
was not submitted to the Municipal authority till the disposal of the matter by
the Supreme Court and while concluding the matter, it is held that the eviction
order shall not be operative till he produces the approved plan before the
executing Court.
14. Following the principles laid down by the Supreme Court as
aforementioned, it has to be held that even though the landlord did not produce
the plan approved by the Corporation of Madurai, he having furnished the copy of
the unapproved plan by saying that he has taken steps to get the same approved,
it is enough to satisfy the requirements and a rider has to be attached in the
eviction order that the eviction order shall be executed on production of the
approved plan by the landlord.
15. As regards the means possessed by the landlord, both the learned
counsel for the party would claim that the pleadings and oral evidence are in
their favour. Firstly, in the eviction petition, the petitioner has
specifically alleged that he has got sufficient funds to pull down the building
and also to put up a pucca construction.
16. Adverting to the oral evidence on record in this regard, the
petitioner, as P.W.1, would depose that he is having sufficient financial
capacity to construct a new building. In the cross-examination, the said
evidence was not specifically denied, but some questions have been put to him to
the effect that he did not mention in the petition that he has given sufficient
amount to his brother and that he has also not deposited any amount in the bank.
The above said questions and answers would not show that the evidence in the
chief-examination as to his possession of funds is categorically denied in the
cross-examination.
17. The learned counsel for the petitioner would state that the
petitioner was working in the Electricity Board at the time of the filing of the
eviction petition and was drawing Rs.7,000/- per month and that since he was
about to retire, he would get a sizeable amount. He examined P.W.2, his clerk,
who would say that by means of Ex.A5 and A6, it could be shown that the
petitioner deposited a sum of Rs.4,00,000/- in National Plywood Agency and Neso
Plywood Agency. In fact both the Ex.A5 and A6, the communication received from
the above said agencies, inform about the accrual of interest for the deposit.
The respondent, in his chief examination as R.W.1 has not specifically denied
that the landlord did not have the means for the purpose. He says that it does
not appear to him that the petitioner is having means (kDjhuh; Bfhhpago trjp
nUg;gjhfj; bjhpatpy;iy). In the cross-examination, it has been elucidated to him
that sufficient means is available with the landlord. Even though the petitioner
issued a notice earlier to the filing of the eviction application stating that
he has got sufficient means, in the cross-examination, RW1 says that he did not
deny the fact in his reply notice.
18. The cumulative effect of the above said materials would show that
the petitioner has got means and all the above said particulars also warrant
such a finding.
19. Since the requirement of the landlord has been found to be bona
fide, the necessary corollary would be that there is no mala fide intention on
his part to evict the tenant by crooked means.
20. Having regard to the above said circumstances, this Court is of the
considered view that the petitioner has clearly established his bona fide
requirement and hence, the order passed by the Rent Control Appellate Authority
is not sustainable. It has to be set aside and it is accordingly set aside.
21. In the result, the Civil Revision Petition is allowed with costs,
directing the respondent to vacate the demised premises within a period of two
months from the date of receipt of copy of this order. It is also directed that
the petitioner shall produce the approved plan before the executing Court along
with the Execution Petition for delivery.
srm/vsn
To
The Additional District Munsif
(Additional Rent Controller),
Madurai.