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N.M. Zackriah Vs. Elect, Hair Dressers - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 1834 of 1969
Judge
Reported inAIR1972Kant244; AIR1972Mys244
ActsMysore House Rent and Accommodation Control Act, 1951 - Sections 21 and 21(1); Mysore Rent Control Act, 1961 - Sections 21(1); Pepsu Urban Rent Restriction Ordinance - Sections 13(3)
AppellantN.M. Zackriah
RespondentElect, Hair Dressers
Appellant AdvocateS.K. Venkataranga Iyengar, Adv.
Respondent AdvocateL. D'Silva, Adv.
DispositionPetition dismissed
Excerpt:
.....application which contains no such averment which is so essential to its success is fundamentally defective. if not, the application for eviction must inevitably fail'.having regard to the principle laid down by this court in the case referred to above, it is clear that what has to be stated and proved before the court is that the premises are required for immediate purpose of demolition and the demolition is to be made for the purpose of erecting a new building in place of the premises sought to be demolished. the landlord in the present case has clearly stated that he does not intend to let out to him. i am satisfied that, in the present case, the petitioner is not entitled to an order of eviction and the view of taken by the courts below declining to pass an order of eviction is..........petitioner in regard to the age of the building and his intention to reconstruct the same are not bona fide. it was also stated that the premises in winch their business is carried on is in perfect condition and only needs white-washing and minor repairs which could easily be done without the necessity of the tenant respondent having to vacate.2. the learned trial judge recorded the evidence and after consideration of all the relevant factors, declined to accept the case of the landlord and dismissed the petition for eviction. this order has been confirmed by the learned appellate judge in appeal. it is the correctness of these two orders that is challenged in this revision petition.3. for the purpose of appreciating the question that arises for consideration in this revision petition,.....
Judgment:
ORDER

H.B. Datar, J.

1. The petitioner-landlord filed H. R. C. No. 310 of 1967 in the court of the Munsiff, Civil Station, Bangalore, seeking an order of eviction against the respondent-tenant for the reason mentioned in the application. In the preamble of the petition it was stated that it was the petition under Section 21 Sub-Clauses (i) and (j) of the Mysore House Rent and Accommodation Control Act. The only averment in the entire portion consists of the following few sentences which read as under:

'2. The premises in question in occupation of the respondent is a fairly old one and the petitioner has finalised his plans for reconstruction of the premises which reconstruction cannot be done unless and until the respondent vacates the premises. The respondent has not chosen to do so in spite of repeated demands'. This is all that has been stated in the entire application. In the objection statement, it was submitted by the tenant that the landlord has not significantly given any details of the reconstruction which he proposes to make in respect ofthe premises occupied by them. It was also stated that the allegation of the petitioner in regard to the age of the building and his intention to reconstruct the same are not bona fide. It was also stated that the premises in winch their business is carried on is in perfect condition and only needs white-washing and minor repairs which could easily be done without the necessity of the tenant respondent having to vacate.

2. The learned trial Judge recorded the evidence and after consideration of all the relevant factors, declined to accept the case of the landlord and dismissed the petition for eviction. This order has been confirmed by the learned appellate Judge in appeal. It is the correctness of these two orders that is challenged in this revision petition.

3. For the purpose of appreciating the question that arises for consideration in this revision petition, it is necessary to set out the provisions of Section 21 (1) (i) and (j) of the Mysore Rent Control Act, 1961. (hereinafter called the Act), which read as under:--

'21 (1) (i) that the premises are reasonably and bona fide required by the landlord for carrying out repairs which cannot be carried out without the premises being vacated; or 21 (11 (11 that the premises are reasonably and bona fide required by the landlord for the immediate purpose of demolishing them and such demolition is to be made for the purpose of erecting a new building in place of the premises sought to be demolished'.

Having regard to the allegation made in the petition filed for eviction, the learned counsel appearing for the petitioner had to concede that no case is made out in the application filed for an order of eviction under Section 21 (1) (i) of the Act. In fact, the sole question urged by the learned counsel for the petitioner was that the present case falls under Section 21 (1) (i) of the Act, and since it falls under Section 21 (1) (i) of the Act, the courts below have not properly appreciated the scope of that section and have improperly declined to grant an order for eviction. In support of his submission, reference was made to the judgment of the Supreme Court in the case of Panchamal Narayana Shenoy v. Basthi Venkatesh Shenoy : [1970]3SCR734 . In that case, the Supreme Court has held as follows:--

'The proviso to Section 21 (1) enumerates the various circumstances under which a landlord may seek to recover possession of the property from his tenant. The requirement contemplated under Clause (j) of the proviso to Sub-section (1) is that of the landlord and it does not have any reference to the condition of the building as such. What is necessaryunder that clause is that the landlord must satisfy the court that he reasonably and bona fide requires the premises far the immediate purpose of demolishing it and the demolition is for the purpose oi erecting a new building in the place of the old one. No doubt, as to whether the landlord's requirement is reasonable and bona fide has to be judged by the surrounding circumstances, which will include his means for reconstruction of the building, and other steps taken by him in that regard. In considering the reasonable and bona fide requirement of the landlord under this clause, the desire of the landlord to put the property to a more profitable use after demolition and reconstruction is also a factor that may be taken into account in favour of the landlord. It is not necessary that the landlord should go further and establish under this clause that the condition of the building is such that it requires immediate demolition. That the condition of the property may be such which requires immediate demolition is emphasised in Clause (k) of the proviso. When such a specific provision has been made in Clause (k) of the condition of the building cannot come into the picture nor could it have been dealt with again in Clause (i). So the requirement under Clause (i) is that of the landlord and cannot have any reference to the building'. In that case, it is important to note that all the courts concurrently held that the requirement of the landlord was reasonable and bona fide having regard to the several circumstances proved in the case. It has been stated that in considering the reasonable and bona fide requirement of the landlord under Section 21 (i) of the Act, the desire of the landlord to put the property to a more profitable use after demolition and reconstruction is also a factor that has to be taken into account in favour of the landlord. Petitioner has not stated any reason for the alteration. In this connection, it is necessary to also refer to the earlier judgment of the Supreme Court in the case reported in Neta Ram v. Jiwan Lal. : AIR1963SC499 , in which their Lordships have laid down the several tests for the purpose of finding out as to whether the claim of the landlord for immediate demolition and reconstruction is reasonable and bona fide. Considering this question, this is what has been stated by Their Lordships:

'Before a landlord can obtain an order for ejectment of his tenant on ground of his requirement for reconstruction of a house, he must satisfy the Rent Controller about genuineness of his claim and this can only be established by looking at all the surrounding circumstances, such as the condition of the building, its situation, the possibility of its being put to a more profitable use after construction, the means of the landlord and so on.

It is not enough that the landlord comes forward, and says that he entertains a particular intention, however, strongly, said to be entertained by him. Section 13 (3) (b) of the Pepsu Urban Rent Restriction Ordinance speaks not of the bona fide of the landlord, but says, on the other hand, that the claim of the landlord that he requires the building for reconstruction and re-erection must be bona fide, that is to say, honest in the circumstances. It is impossible, therefore, to hold that the investigation by the Controller should be confined only to the existence of an intention in the mind of the landlord to reconstruct. This intention must be honestly held in relation to the surrounding circumstances'.

In this connection, it is necessary to recall that in the present case, barring the statement that the petitioner has finalised the plan for reconstruction of the premises, not a single word has been stated in the entire petition stating reasons for his under Section 21 (i) (j) of the Act. What is required to be averred in a petition under Section 21 (1) (j) of the Act, has been considered by this court in Lidwine Mathias v. Madhava, (1968) 2 Mys LJ 120. In that case, Somnath Iyer, J. (as he then was) has stated thus:

'.....now, the demolition which can be made the foundation of an application under Clause (i) of Section 21 (1) is a proposed immediate demolition. The word 'immediate' occurring in that clause has reference to the point of time when the landlord secures possession, for it is only then that the demolition can commence, and, that, is, what Section 26 asks him to do. But the landlord should intend to make the demolition soon after he secures possession, and, it is that sense of urgency in mind which impresses on the contemplated demolition the equality of immediateness. That such is his intention should be stated by him in his application and an application which contains no such averment which is so essential to its success is fundamentally defective. So it became the duty of the landlord to allege and Drove that she had planned to make an immediate demolition. Although in Ex. A-2 which was the reply sent by the landlord to the tenant, she did state that the purpose of the requirement was immediate demolition, she did not say so in her application in which all that was stated was that the landlord reasonably and bona fide required the premises for demolition. I do not accept the postulate of Mr. Holla that the omission on the part of the landlord to make an allegation that the premises were required for immediate demolition has no materiality. In my opinion, it has great materiality. That such is the purpose of the requirement has to be stated and proved by trustworthy evidence; if not, the application for eviction must inevitably fail'.

Having regard to the principle laid down by this court in the case referred to above, it is clear that what has to be stated and proved before the Court is that the premises are required for immediate purpose of demolition and the demolition is to be made for the purpose of erecting a new building in place of the premises sought to be demolished. It has to be stated and shown before the court that the demand is reasonable and bona fide. In the present case, having regard to the allegation made in the application, it has to be held that the case under Section 21 (1) (j) of the Act has not been made out at all. In that view, the petition is liable to be rejected.

4. However, having regard to the arguments advanced on the merits of the case. I would consider as to whether the premises are reasonably and bona fide required by the landlord for the immediate purpose of demolition of the building and for erecting of a new building.

5. The landlord has to satisfy the court that his claim for immediate demolition and reconstruction is bona fide and reasonable. To arrive at a decision on the claim, the allegations in the petition, surrounding circumstances have to be seen. The Court need not gratify the claim of the landlord merely because he states that he needs it for demolition and reconstruction. The intention has to be honest and it must be reasonable for the court to pass an order. The case put forward by the landlord in the notice issued to the tenant is that the premises are fairly old one and require to be reconstructed. In support of this averment, a plan and an estimate Exhibits P-1 and P-2 have been produced. From the perusal of Exts. P-1 and P-2, it is clear that it is only an alteration or addition to the structure, but not 'erecting of a building in the place of the premises sought to be demolished'. If the premises of which possession is sought for is not for erecting a new building, then, the landlord, is not entitled to an order of eviction under Section 21 (1) (j) of the Act. According to the plan, estimate and evidence of the Engineer, some alterations are proposed to be done by removing stair-case remodelling two shops and making them into three shops. An order under Section 21 (i) of the Act is possible only if the building is required for immediate demolition and there is reconstruction of the new building in the place of the premises demolished. The work proposed to be carried out in the present case does not amount to construction of a new building. Such a claim does not fall under Section 21 (1) (j) of the Act.

6. It was only during the enquiry, the petitioner sought to make out a case that the proposed reconstruction is for investment. It is important to note that such a case was not pleaded, but appears to be an afterthought. In the cross-examination of P. W. 1 he has stated that after reconstruction he is not prepared to let out the premises to the tenant. Under Section 21 (1) (j) of the Act, when an eviction is sought for the immediate purpose of demolition and reconstruction the landlord is bound to offer the premises to the tenant from whom possession was sought for and that is a statutory liability. The landlord in the present case has clearly stated that he does not intend to let out to him. which shows that the intention is to evict the tenant on some or the other ground.

7. Exhibit R-4 is the pass book. It shows that there is a balance of about over Rs. 12,000/-. The estimate made is over Rs. 40,000/- and it has not been shown that the minors for whom the building is to be constructed have means to raise that fund. Having regard to the evidence on record. I am satisfied that, in the present case, the petitioner is not entitled to an order of eviction and the view of taken by the courts below declining to pass an order of eviction is perfectly sound and does not call for interference.

8. In the result, this revision petition fails and the same is dismissed with costs.


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