Syed Mehdi Ispahani vs Shakeel Ur-Rehman on 25 October, 2000

Madras High Court
Syed Mehdi Ispahani vs Shakeel Ur-Rehman on 25 October, 2000
Equivalent citations: 2000 (4) CTC 585
Bench: R Balasubramanian


ORDER

1. The landlord of a building in the city of Madras is the revision petitioner. The respondent in this revision is the tenant. The landlord’s petition for evicting the tenant on the ground of demolition and reconstruction was dismissed on merits. An appeal filed by the landlord in R.C.A. No. 167 of 1994 was also dismissed on merits by the Appellants Authority. Hence the present revision before this Court.

2. Heard Mr. T.R. Rajagopalan, learned Additional Advocate General appearing for the landlord and Mr.P.H. Pandian, learned Senior Counsel appearing for the tenant.

3. The argument of the learned Additional Advocate General is that though the authorities below, concurrently held that the landlord had not made

out a case for eviction on the ground of demolition and reconstruction, yet the judgment of the authorities below is erroneous and vitiated on account of the fact that each one of the authorities under the Act have been solely and completely influenced by the judgment of the Honourable Supreme Court of India rendered in P.Orr and Sons case. The further submission of the learned Additional Advocate General is that as on date the Judgment of the Honourable Supreme Court of India reported in Vijay Singh and others v. Vijayalakshmi Ammal, holds the field and that if the materials placed before the authorities by the respective parties are considered in the light of the judgment referred to above, then there will be no difficulty at all for this Court to set aside the order of dismissal and instead order eviction. Mr.P.H. Pandian, learned Senior Counsel appearing for the tenant would contend that the landlord neither pleaded nor established by any evidence before Court about the age and condition of the building. Even in Vijay Singh’s case, the age and condition of the building is stated to be one of the ingredients that can go into the mind of the authorities while the landlord’s petition for eviction on the ground of demolition and reconstruction comes up for consideration. In view of the fact that the landlord had not established by pleading and by evidence about the age and condition of the building, even if the landlord had satisfied the other requirements as provided for in the decided cases, yet he shall not be given any order of eviction. The learned Senior Counsel would also contend that in the absence of any pleading about the age and condition of the building, any amount of evidence let in by the landlord, assuming there is some while in fact there is none, cannot be taken into account to consider the case of the landlord in his favour. The learned Senior Counsel would also contend that the landlord had not taken any steps, namely, by applying for a sanctioned plan, which alone would indicate that the requirement of the landlord is bona fide. In answer to this submission of the learned Senior Counsel the learned Additional Advocate General would contend that though there is no pleading in the rent control petition on the age and condition of the building, yet if on record, there are materials from which it could be concluded one way or the other, than there will be no bar for this Court to take these materials into account and give a finding on the age and condition of the building.

4. In the light of the arguments advanced by the learned Additional Advocate General appearing for the landlord and Mr.P.H. Pandian, learned Senior Counsel appearing for the tenant, I perused the entire materials placed before the Court. The relevant allegations found in the rent control petition are found in para-4 of that petition. It is extracted hereunder:-

“The petition mentioned property is situated at a residential-cum-commercial locality. In and around the petition premises multi-storied buildings have been erected. The petitioner herein, in order to cope-up with the development in the area and to have better utilization and better income considering the location and extent of the property have decided to demolish the present building completely and decided to construct a

multi-storied building in the property. The petitioner submits that he bona fidely needs the premises for the aforesaid purpose. The petitioner submits that he has necessary where-withal to finance the construction of the proposed multi- storied building in the property.”

The averments contained in para.4 extracted above are met by the tenant in the following lines and they are extracted hereunder:-

“This respondent denies the allegation made in para.5 of the petition as false and contrary to facts. The allegations that the petition building is situated in a residential-cum- commercial locality is not true. The allegation that multi storied building have been erected in and around the petition building is false. The allegation that in order to cope with the alleged development in the area and to have a better utilisation and better income considering the alleged location and alleged extent of the property the petitioner had decided to demolish the present building completely and desired to build a multi-storied building on the site is nothing but a false hood. The petitioner is making these allegations knowing fully well that they are false only with a view to make his claim sustainable. The allegation that the petitioner bona fide needs the building in the occupation of the respondent for the purpose of demolition and reconstruction of a new building on the site is false and baseless. The allegation that the petitioner has the necessary wherewithal to finance the construction of the proposed multi- storied building in the site of the petition property is false.”

The landlord’s claim that he requires the building bona fide for the purpose of demolition and reconstruction stands denied by the tenant in the counter.”

5. To substantiate the respective case, the landlord’s brother is examined as RW1 and as many as 14 exhibits were marked on their side as Exs.P1 to P14. On the side of the tenant, the tenant examined himself as RW1 besides examining an engineer as RW2. Seven exhibits were marked on his side as Exs.R1 to R7 out of which Exs.R1 to R3 are photographs and Ex.R4 is the negative. Ex.R7 is the Engineer’s Report.

6. In view of the controversy brought before this Court during the argument of the learned Senior Counsel on either side, it is but necessary for this Court in extract the relevant oral evidence available on record. The premises in respect of which eviction is sought for is Door No.5, Clemens Road, Purasawalkkam, Madras. PW1 in his oral evidence in chief would state as follows:-

“The present extent of this property 1 ground and 277 Sq.Ft. Plenty of developments have taken place in and around these area. The respondent pays a very small amount. We have filed this petition for demolition and reconstruction. The next door No.6 is owned by me. No.7, Clemens Road is owned by my mother. All property together will be approximately 12 grounds. We are going to combine all the three properties together and make a new spacious construction. The agreement entered into by the petitioner, myself and my mother is Ex.P11. Pursuant to that we have drawn a plan for new construction. The site plan signed by me, as power agent of my brother as well as my mother is Ex.P12. My brother has got the means to put up construction.

As per P10 the net value of wealth is Rs. 15,62,501. In order to raise funds we can mortgage the lands and take loans from banks and institution as personal guarantee.”

In his evidence in cross, the following answers have come:-

“The photographs are relating to the building in question. The area of structure built-up is 1270 Sq.Ft. in ground floor and situated in the first floor. The appurtenant land is 2/3rd area of 1.5 ground. I do not know the type of foundation of the building, whether it is six feet or seven feet. I do not know the thickness of the wall. I do not know whether it is RCC roof. Whether the super-structure is cement mortar or plastered with cement I do not know. I do not know whether teak wood is used or not. I do not know whether the building is in good condition or not. I have not paid the fees for the sanction of plan. As I could not get possession for the past two years I did not pay the fees. Only on getting possession I will pay the required fees. I am not going to submit the reconstruction plan till I get possession of the premises. The demolition fee may be about Rs.30,000 to Rs.40,000 for the petition premises alone. The cost of construction for all the building would come to Rs.1.80 Crores to Rs.2 Crores. I have money to the tune of Rs.14 lakhs in bank. After construction of flats we will sell some flats.”

The tenant in his evidence as RW1 would depose as follows:-

“The building is in a good condition without any repairs. Cement and bricks have been used. Teak wood has been used. There is a deep foundation.”

In cross examination his evidence is as follows:-

“In his personal estimate the building is 30 years old. Any permit given for construction will be valid for six months. If I am the owner of the building, I cannot tolerate the permit lapsing. The building looks good if seen from outside. How it looks from inside I do not know. I do not know how the construction looks from inside. However looking from outside it is good. Therefore it must be good on the inside also.”

RW2 is the engineer examined on the side of the tenant. In his evidence in chief, the following materials have come:-

“The entire ground floor is of Madras terrace; Teak Wood reapers are used; Verandah and Bedroom in the first floor is of Madras terrace; the rest of the portion are having Mangalore tiled rood; square tiles are used; the building is 50 years old and it could exist for another 80 years without problem; R7 years is my report.”

In his evidence in cross, the following materials have come out:-

“I have not filed the notes of inspection prepared by me; I have not examined any plan or title deed relating to [he petition premises since nobody gave it to me; my report do not contain any detail as to what type of examination I did to find out the content of the building; it is my approximate estimate that the building is 50 years old.”

7. In Vijay Singh’s case, the Honourable Supreme Court of India, after adverting to the requirement of the landlord seeking eviction on the ground of demolition and reconstruction, which case arose under the very same Act, held 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 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 factors and then a conclusion one way or the other has to be arrived at by the Rent Controller.”

These are stated to be some of the illustrative factors.

8. Let me now consider whether the landlord had established any of these illustrative factors in this case. Since the very thrust of the argument of the learned Senior Counsel for the tenant is that in the absence of pleading and proof regarding the age and condition of the building, the landlord would not be entitled to an order of eviction. I tried to find out from the materials available on record as to whether any conclusion could be arrived at about the age and condition of the building one way or the other. It may be true that there is no pleading in the rent control petition about the age and condition of the building. From the oral evidence of PW1 also, this Court is unable to find any valid materials to arrive at a conclusion regarding the age and condition of the building. In the judgment reported in 100 LW 258, the then former learned Chief Justice of this Court held that strict requirement of pleading insisted upon in regular civil cases shall not be the Rule in cases arising under the Rent Control Act where the enquiry is only summary in nature. The learned Chief Justice had also held that the Court should take into account the totality of the circumstances available on record to decide the case one way or the other. Similarly, another learned Single Judge of this Court in the judgment reported in S.M.Ispahani and another v. Harrington House School, has held that absence of proper pleading would not by itself disable the Court to grant any relief if the granting of relief could be decided on the facts established on records. In Bank of India v. Lekshimani Dass and others, 2000 (3) LW 346, the Honourable Supreme Court of India has held that want of pleadings would arise only when a party is put to prejudice and where the facts writ large and the parties go on trial on that basis, then there is no prejudice.

9. From the relevant pleadings extracted earlier in this judgment, it is clear that the tenant is aware of his rights under the Act and he is also fully conscious about the fact that the age and condition of the building would be a relevant factor which must be established and which shall go into the mind of the authorities under the Act. Besides examining himself on the age and

condition of the building, he had also examined an engineer on his side and marked his report as Ex.R7. Therefore, I am of the considered opinion that absence of pleading on the side of the landlord and no substantial oral evidence by him on the age and condition of the building would not by itself be a bar for this Court to grant the relief to the landlord if he is otherwise entitled to the same on the facts established.

10. Both the authorities below have concurrently found on the materials placed before them that there cannot be any dispute about the solvency of the landlords. Exs.P5 to P7 are notice issued under the Income Tax Act and Exs. P8 to P10 are the Income Tax Assessment orders relating to the landlord. They establish that the landlord is a man of means and there cannot be any difficulty at all for me to undertake the project of demolition and reconstruction. The evidence of PW1 is also impressive on this aspect and therefore there is no reason to doubt the finding rendered by the authorities under the Act that the landlord is solvent.

11. The next question that follows for consideration is whether the requirement of the landlord is bona fide or has he filed the petition only with the sole object of getting rid of the tenant. The relevant pleading in this respect had already been extracted earlier. It shows that the building is situated in a very important area where substantial developments have taken place. It is also stated thereunder that in order to keep up with the development of the area, and for better utilization of the property the building is required for demolition and reconstruction. It is also stated in the petition that to augment the income of the landlord also the petition had come to be filed. Apart from pleading, the landlords evidence also shows that the building is situated in a very important area and substantial development had taken place in and around the building. In the judgment reported in S. Raju v. Nathamani, 1998 (3) LW 214, it has been held as follows:-

“In this case it has come out in evidence that the building is situated in an important locality and the scheduled building is more than 50 years old even on the date of petition. It is situated in the heart of Erode Town, an important town in Tamil Nadu, the same being a commercial centre. Taking into consideration the importance of the locality and the development that has taken place, the rent which the landlord gets is really meagre. When various buildings with modem amenities have come up in that locality, naturally the scheduled building becomes unsuitable to the surroundings. In fact the building in question, in its present condition, is a liability to the landlord. Keeping the building in the same condition will amount to asking the landlord to shoulder the burden for ever. The tenants may be satisfied with the present state of the building, since they have to pay only a nominal rent. But the Rent Control Legislation, as interpreted by the Hon’ble Supreme Court of India, is beneficial to both the landlord and tenant and therefore interest of both of them should be taken into consideration.”

Importance of the area where the building is situated and the development which the said area had undergone, had been held to be relevant consideration

to be taken into account in deciding the bona fide requirement of the landlord seeking eviction on the ground of demolition and reconstruction in the above referred to judgment. The same view is taken by this Court in C.R.P.No. 338 of 1997 dated 12.10.2000. The oral evidence also shows that apart from the building in question owned by the landlord, the witness and his mother owns two adjoining houses and all of them have entered into an agreement as evidenced by Ex.P11 to have all the three buildings demolished and a multi-storey structure would be put up in that area. The total extent of that property available for the three buildings is stated to be around 12 1/2 grounds. The building in question is on an area of 1 ground and 277 Sq.Ft. These facts really speak for themselves to show that the landlord has the necessary bona fides. There is no material on record to show that the landlord’s application for eviction is motivated by any oblique motive. There is nothing to show that there is any mala fide on his part. Therefore from my above discussion it is clear that the landlord has established bona fide requirement. It may be noticed here that the requirement of the landlord as put forward by me in this case is to pull down the old structures and put up a multi-storey structure in that area. This cannot be held to be an unreasonable desire. The other areas covered by the other buildings are subject matter of eviction petitions and they are stated to be pending. The desire of the landlord to develop his property in a way he likes with a view to augment his income cannot be stated to be a mala fide intention.

12. Therefore this leads the Court to the last question as to whether the landlord had established the age and condition of the building which is held to be a relevant factor. It may be noticed here as contended by the learned Additional Advocate General that Law does not require that unless the landlord established beyond doubt that the condition of the building is in such a bad and dilapidated condition, which would lead the building to crumble down immediately or later on, he would not be entitled to an order of eviction. In the context of the above position of law I have examined the materials on record. Fully realising that there is neither a plea about the age and condition of the building nor there is much of evidence on the side of the landlord. I approached this problem with great care and caution. In this context, it is brought to my notice the judgment of the Honourable Supreme Court of India reported in K.M. Abdul Razzak v. Damodharan, . That was also a case arising under the Tamil Nadu Rent Control Act where the finding on all material requirements went against the landlord. The condition of the building was also found to be not so very bad requiring demolition. In other words, there was concurrent finding against the landlord in that decided case that the landlord was not solvent; the landlord lacks bona fides and the landlord had not established the condition of the building to be so very bad warranting an order of vacation. In the background of the concurrent finding rendered by the authorities below the Civil Revision Petition was disposed of by this Court reappreciating the entire evidence and coming to a totally different conclusion in favour of the landlord. In so doing this Court held that

the Rent Controller and the Appellate Authority decided the case with reference to the law as it stood then, namely, in P.Orr. & Sons case though the decided case of Vijaya Singh, should be taken into account which was in fact taken into account by the High Court. In the above noticed facts, the Honourable Supreme Court of India in the case of Abdul Razzak referred to supra held that the only course open to the High Court would be remand the matter to the Appellate Court for consideration in accordance with the judgment rendered in Vijaya Singh’s case, The learned Additional Advocate General on this judgment, contended that similar is not the facts here. The learned Additional Advocate General would state that in the case on hand, except the conclusion on the condition and age of the building, the findings by the authorities below on all other aspects are in favour of the landlord. In any event, the finding of the authorities below that the requirement of the landlord is not bona fide is solely on the basis of the condition of the building having not been established to be that bad warranting an order of eviction. Therefore, the learned Additional Advocate General would contend on the facts available in this case, the law laid down by the Supreme Court in K.M. Abdul Razzak v. Damodharan, may not be attracted and there would be no bar for this Court to apply its mind to the facts available on record and if from those facts legal inference or a conclusion could be arrived at, then it can be very well done by this Court. I am able to see force in the argument of the learned Additional Advocate General and therefore I am inclined to decide the matter here itself as to whether from the facts established on records could it be held that the landlord had made out a case even regarding the age and condition of the building.

13. I have already said that neither from the pleading of the landlord nor from his oral evidence much could be said about the age and condition of the building. But at the same time, I find from the oral evidence of RW1, the tenant, as well as the oral evidence of his engineer, RW2, that there are enough materials to legally infer and conclude about the age and condition of the building. Though RW1 would state in his chief examination that the building is in a good condition following materials available in cross would throw considerable light on the age and condition of the building. The materials are as follows:-

“In my opinion the building is 30 years old. Looking from outside only the building looks good; I do not know how the building looks like on the inside; I do not know its interior condition. From outside it looks good; therefore the interior also must be good.”

The evidence of RW2 in chief examination is as follows:-

“Bricks and Lime Mortar have been used in the construction; plastering is by lime mortar; the flooring is by cement; the thickness of the wall is 1 1/2 feet; teak wood had been used; the entire ground floor is Madras terrace; teak wood reaper have been used; verandah and bedroom in the first floor is of Madras

terrace; the rest of the portion have Mangalore tiled rood; square tiles have been used and the building is 50 years old.”

Using Madras terrace in construction is of an ancient origin. Atleast since the last forty years or fifty years no construction is put up with Madras terrace. In addition to that from the evidence of RW2 itself it is seen that the building in question has Mangalore tiled roof and that square tiles have been used. Brick and lime mortar had been used in the construction and the plastering is also by lime mortar. The above materials noticed by me, which have been brought before the Court by the tenant himself, would clearly indicate that the age of the building is 50 years and the condition of the building is not that good. It is no doubt true that by having a look at Exs.R1 to R3, the building appears to look good from the exterior, but nonetheless it would not take away the impact of the evidence of the witnesses, namely, RW1 and RW2 on the lines indicated above. Therefore, the age and condition of the building also stands established from the records available. How far the age and condition of the building would be a guiding factor in deciding the requirement of the landlord seeking eviction on the ground of demolition and reconstruction is the subject matter of a number of judgments of this Court and in one such judgment reported in A. Lakshmanan and others v. Kanniammal alias Pattammal,
1995 (1) L.W.632 it has been held as follows:-

“(9) As rightly contended by the learned counsel for the landlady. Section 14(1)(b) of the Act is not rendered inapplicable merely because the building is not old or dilapidated, but is in good condition. In other words, if the intention of the landlady for demolition and reconstruction is proved to be genuine and not spurious or suspicious, the landlady would be entitled to obtain an order for eviction under Section 14(1)(b) of the Act, whether or not the condition of the building is such as to require immediate demolition, the age and dilapidated condition of the building not being sine qua non for such eviction.”

(10) It is settled law that a concrete and immediate proposal or scheme to demolish an existing building and reconstruct it into a bigger, more production and higher income yielding one, cannot, by any means, he said to be mala fide.

In order to satisfy the test under Section 14(1)(b) of the Act, 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 timely, genuine and direct purpose of demolition and
reconstruction.”

To the same effect is another judgment by the very same Judge reported in
1996 (2) LW 534, wherein it has been held as follows:-

“(10) Likewise, the motive for demolition and reconstruction is wholly irrevelant in a petition for eviction under Section 14(1)(b). As rightly contended by learned counsel for the landlord, Section 14(1)(b) of the Act, is not rendered inapplicable merely because building is not old or dilapidated, but is in good condition. In other words, if the intention of the landlord is proved to be genuine, and not spurious or suspicious, the landlord would be entitled to obtain an order for eviction under Section 14(1)(b) of the Act, whether or not

the condition of the building is such as to require immediate demolition, the age and dilapidated condition of the building not being sine qua non for such eviction. It is well established in this case that the means of the landlord to carry out the work of demolition and reconstruction is a relevant factor to be taken note of by this Court.”

14. By judgment dated 12.10.2000 in C.R.P.No.338 of 1997 I have held that though there is no pleading regarding the age and condition of the building, yet if from the materials available on record a conclusion one way or other on that aspect could be arrived at, then there will be no bar for this Court to arrive at such a conclusion from the facts established. Another learned Single Judge in his judgment repotted in S.M. Ispahani and another v. Harrington House School, held that if established facts from records warrant an order be granted either way, then the Court would definitely do so though there may be no pleading in regard thereto.

15. In these circumstances, I am of the considered opinion that the landlord had also established the age and condition of, the building. This means all the three illustrative factors spelt cut by the Honourable Supreme Court of India in Vijay Singh’s case, are clearly made out on record. Therefore, it is clear that the judgment of the authorities below dismissing the Rent Control Petition, though concurrently, is due to an erroneous approach to the whole issue before them. The conclusions arrived at by the authorities below from the admitted facts are conclusions which could not be legally supported. In my considered opinion, the only legal inference that could be drawn on the facts established is that the landlord had made out a case for getting an order of eviction on the ground of demolition and reconstruction. The landlord had also given the statutory undertaking. Accordingly, the judgments challenged in this revision are set aside and the Civil Revision Petition is allowed and there shall be an order of eviction in favour of the landlord in RCOP No.2424 of 1988 on the file of the l5th Judge, Court of Small Causes, Madras. No costs.

16. At this stage, a request is made to the Court by the learned Senior Counsel for the tenant to grant six months time for the tenant to vacate. I heard the learned Senior Counsel for the landlord and he agreed for giving time. Accordingly, the tenant is given time till 30th April 2001 (30.4.2001) to vacate and deliver vacant possession of the petition mentioned premises to the landlord on condition that he pays the entire arrears of rent, if any, as on date on or before 30.11.2000 and he continues to pay the rent due from October, 2000 on or before the 10th of the succeeding month and likewise the future rents due for the succeeding months on or before 10th of the succeeding respective months. Non-compliance of any one of the conditions would result in the order of eviction being put into execution forthwith without any further reference to the Court.

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes:

<a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>

* Copy This Password *

* Type Or Paste Password Here *