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Pappu Ammal Vs. Lab Chemicals and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberC.R.P. Nos. 439 and 440 of 1975
Judge
Reported inAIR1978Mad272; (1978)1MLJ523
ActsTamil Nadu Buildings (Lease and Rent Control) Act, 1960 - Sections 10(3), 14(1) and 25
AppellantPappu Ammal
RespondentLab Chemicals and anr.
Appellant AdvocateG.V. Baluswami and ;Asif Ali, Advs.
Respondent AdvocateS.V. Kumaraswami, ;A.L. Natarajan and ;M.A. Srinivasan, Advs.
DispositionApplication allowed
Cases ReferredRamanatha Iyer v. Bathul Bai
Excerpt:
.....one another. the courts below had erroneously taken that point as a factor indicating the lack of bonafides on the part of the petitioner. the fact that the petitioner had obtained sanction fro demolition and reconstruction subsequently was also put against the petitioner. the courts below found that the petitioner had got means to carry out the work of demolition and reconstruction and her affluence was also taken against her. there was no finding rendered by the courts below that the buildings were in a sound condition so that that factor may be taken into consideration to negative the bona fides of the petitioner. the courts below had made a wrong approach to the question of bona fides in derogation of the well laid down principles in the judicial precedents of the high court on..........on the ground of requirement of the building for business purposes and she is not motivated by bona fides in filing the petitions for eviction. the rent controller who heard the petitions came to the conclusion that the landlady is not motivated by bona fides and in that view, dismissed her petitions on 30-7-1973. aggrieved thereby the landlady filed h. r. a. no. 534 of 1973 against h. r. c. no. 2270 of. 1971 and h. r. a. no. 535 of 1973 against h. r. c. no. 2271 of 1971. they were heard and disposed of by the appellate authority (third judge, court of small causes, madras) by a common judgment dated 7-10-1974. appellate authority concurred with the rent controller that the landlady lacked bona fides and dismissed the appeals, preferred by the landlady. the present revisions are.....
Judgment:
1. In these revisions, the landlady is the petitioner. The matters arise out of rent control petitions filed by the landlady under Section 14(1)(b) of the Tamil Nadu Buildings (Lease and. Rent Control) Act (hereinafter referred-to as the-Act). H. R. G. No. 2270 of 1971 wag filed by the landlady- against Messrs. Lab Chemicals, the respondent in C. R. P. No. 439 of 1975. H.R.C. No. 2271 of 1971 was filed by the landlady against P.S. Palani Chetti respondent in C. R. P. No. 440 of 1975. Both were entertained by the Eighth Judge, Court of Small Causes (Rent Controller), Madras. According to the petitioner she required the premises In the occupation of the respective tenants for the immediate purpose of demolishing the same and such demolition is to be made for the purpose of erecting a new building on the site of the building sought to be demolished. The case of the petitioner as could be gathered from the petitions filed before the Rent Controller, was that her husband was doing business in Ceylon; for some years there have been threats against the Indian merchants in that country to leave; her husband was able to prolong his stay there till recently when he had to migrate to India once for all in May 1971; her husband, after coming to India, has made all preparations to start a business of his own at Madras for the benefit of the family, but for want of a business place for carrying on the business exclusively, the family is handicapped; the petition building is the only non-residential building belonging to them in Madras, that she has also filed separate petitions for eviction of the tenants under Section 10(3)(a)(iii) of the Act; the shops in the occupation of the tenants are old and narrow and require to be reconstructed. The landlady gave the requisite under-taking to commence the work of demolition of the building, not later than one month and to complete the same before the expiry of the three months from the date possession is recovered. The respondents-tenants filed their counters. The main contentions, as could be gathered from their counters, are that the landlady has been demanding enhanced rent; she has no means to demolish and reconstruct the building; the building is not old and does not require any demolition; that the landlady hag filed another petition for their eviction on the ground of requirement of the building for business purposes and she is not motivated by bona fides in filing the petitions for eviction. The Rent Controller who heard the petitions came to the conclusion that the landlady is not motivated by bona fides and in that view, dismissed her petitions on 30-7-1973. Aggrieved thereby the landlady filed H. R. A. No. 534 of 1973 against H. R. C. No. 2270 of. 1971 and H. R. A. No. 535 of 1973 against H. R. C. No. 2271 of 1971. They were heard and disposed of by the Appellate Authority (Third Judge, Court of Small Causes, Madras) by a common judgment dated 7-10-1974. Appellate Authority concurred with the Rent Controller that the landlady lacked bona fides and dismissed the appeals, preferred by the landlady. The present revisions are directed against the order of the Appellate authority.

2. The main question that comes up for consideration in both these revisions is as to whether the courts below applied the correct principles with reference to the assessment of bona fides under Section 14(1)(b) of the Act. The question of bona fides has passed through many facets of consideration by judicial precedents. It will be pertinent to refer to some of them so as to deduce the correct principle that should be applied in consideration of this question, viz. 'bona fides' of the landlord for seeking eviction under Section 14(1)(b) of the Act. In its wisdom, the Legislature was not content to lay down that the landlord can recover possession from the tenant on the simple ground that he required the premises for the immediate purpose of demolishing it and putting a new building on the site. The expression 'bona fide' has been consciously incorporated so as to enjoin a duty upon the Courts to consider as to whether the requirement of the landlord has got the support of his bona fides. Without this element being present and without the consideration of this element, it will not be easy for the landlord to apply for eviction under this provision, viz., Section 14(1)(b) of the Act.

3. In Mehsin Bhai v. Hale and Co., Madras, (1964) 77 Mad LW 194, Anantha-narayahan J. while considering the question of 'bona fide' observed -

"Some regard must certainly be made to the fact that the Act is intended for the protection of tenants, from unjust eviction though the rights of landlords acting bona fide are equally safeguarded and that it will be an abuse of process of court if any provision of the Act is merely used as a pretext by the landlord, to obtain the eviction of a tenant, which he could not do otherwise".

In Sha Manakchand v. Sankarji Moolchand 1965-2 Mad LJ 12, Anantanarayanan Order C.J. considered the question of 'bona fides' and observed -

"The question of the bona fide requirement of a landlord of a building for immediate demolition and reconstruction under Section 14(1)(b) of the Madras Buildings Lease and Bent Control Act is sometimes difficult to adjudge and it is impossible to lay down any hard and fast rule. Bona fides will be a matter for decision in each case on its own facts and cannot rest upon a mere averment on claim by landlord. It is not the intention of the Legislature that in every case bona fides should be presumed unless the tenant establishes mala fides".

4. In David v. Daniel, (1967) 1 Mad LJ 110, a Division Bench of this Court consisting of Chandra Reddy C.J. and Natesan J. had occasion to consider the question of bona fides under Section 14(1)(b) of the Act. In that decision, the law has been stated as follows -

"The only requirement of Section 14(1)(b) is that honest desire of the landlord to demolish the building and such demolition is to be made for the purpose of erecting a new building on the site of the building sought to be demolished. There is nothing in the language of this clause to warrant the view that the building should be old and decrepit. The expression bona fide occurring in that clause cannot sustain the opinion that it is only when a building is old and in a dilapidated condition that it could be demolished for the purpose of putting up a new construction so as to attract clause (b) of Section 14(1). The import of the section is that the desire or the intention to demolish and rebuild should be honestly entertained by the landlord. It should not be a device to evict the tenant.....The fact that the landlords have not decided as to what use they should put part of the building after its reconstruction is not decisive on the question of bona fide."

5. In Selvaraj v. Narasimha Rao, (1969) 1 Mad LJ 587, a Division Bench of this court, consisting of Veeraswami C.J. and Ramaprasada Rao J. has laid down the test with regard to the bona fide under Section 14(1)(b) of the Act. The learned Judges observed -

"The quality and content of the expression 'bona fide1 appearing in the various sections of the Act and for purposes therein enumerated have to be weighed and construed in different lines under different circumstances having regard to the context in which the expression appears.. Section 16 of the Act affords a statutory right to the tenant to reclaim possession of a building secured by the landlord under Section 14(1)(b), if he does not substantially demolish the building and attempt at reconstruction as proposed. This controlling provision provides as it were a key to the interpretation of the expression bona fide appearing in Section 14(1)(b) of the Act. It appears to us that in cases where the claim of the landlord is not per se dishonest and has not been found to be oblique or for any designed purpose to evict the tenant, then it follows that he is entitled to an order of eviction in the ordinary course, subject, however, to the tribunals constituted under the Act being satisfied that the other relevant conditions required and prescribed under the Act are complied with".

6. The ratio enunciated by their Lordships in the above decision seems to have concluded the controversy with reference to the construction of the expression 'bona fides' occurring in Section 14(1)(b) of the Act. No other decision of this court, holding a contrary view, hag been brought to my notice and I find the said ratio has been uniformly followed by the subsequent judicial precedents of this court.

7. In C.B. Purehothamdass v. P. Mittalal, 1976-1 Mad LJ 89: (AIR 1976 Mal 65), Ramaprasada Rao J. has reiterated the above ratio in the following terms (at p. 65 of AIR):

"There is inbuilt in Section 14(1)(b) of the Madras Buildings (Lease and Rent Control) Act a safeguard under which the tenant could take shelter so as to thwart any pretences on the part of the landlord in the matter of the demolition of the building for purposes of reconstruction. The lever is that the tenant can seek for restitution if the landlord who has to peremptorily give an undertaking as provided for in Section 14(2) fails to demolish the same within the prescribed time. Whatever reason might prompt an individual to destroy his own property that cannot be the subject matter of investigation by a Court of Law. It is in this sense that the halo of bona fides which play a very prominent part in so far as petitions under the other sections of the Act are concerned, sinks, to more or less an insignificant level. In view of the fact that the landlord comes forward openly and publicly to demolish and destroy his property, that would not be case which is automatically illustrative of the bona fides of the landlord. In such circumstances, there cannot be any acid test to measure the bona fides of the landlord in the matter of such eviction".

8. In Shanthakumari v. Narasimga Mudaliar, (1976) 2 Mad LJ 211. Suryamurthy J. observed that bona fides is a question of degree; bona fides has to be assessed with reference to the circumstances and facts of each particular case and in the context and framework of the situation prevailing at that time. In Sampathu v. Ethiraja Chettiar, C.R.P. No. 2524 of 1973, D/- 1-10-1974 (Mad), Ramaprasada Rao J. had occasion to refer to the dictum of the Division Bench of this court in Selvaraj v. Narasimha Rao 1969-1 Mad LJ 587 and the learned Judge observed -

"It is high time that the Subordinate Judge and the Rent Controller of his District, namely, North Arcot District, apprise themselves of the decision in Selvaraj v. Narasimha Rao, 1969-1 Mad LJ 587, and apply it correctly at least in future. The section itself provides for relief to the tenant, who can remain in the property, if the demolition is not made within the prescribed time. This is a statutory benefit conferred on the tenant in the case of any laches on the part of the landlord. Thus viewed, the courts below ought not to have entered Into an adjudication on the issue whether the claim of the landlord in such circumstances was bona fide or not".

9. While dealing with a similar provision under the Mysore Rent Control Act, 1961 (Mysore Act 22 of 1961) the Supreme Court, in Panchmal Narayan Shenoy v. Basthi Venkatesha Shenoy , had

occasion to consider the question of bona fides. The relevant provision of the Mysore Act, as extracted in the decision reads as follows: (at p. 944 of AIR):

"21 (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or other authority in favour of the landlord against the tenant;

Provided that the court may on an application made to it, make an order for the recovery of possession of a premises on one or more of the following grounds, only, namely -

(j) 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".

10. The Supreme Court observed as follows -

"What is necessary under that clause is that the landlord must satisfy the court that he reasonably and bona fide requires the premises for the immediate purpose of demolishing it and the demolition is for the purpose of 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. In our opinion, 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.....So the requirement under clause (j) is that of the landlord and cannot have any reference to the building".

11. In Ramachandra Rao v. Krishnaswami Iyengar, 1976-1 Mad LJ 267 Varadarajan J. had occasion to deal with a case where the landlord put forth the specific plea that the building is in very bad state of repairs and required to be immediately pulled down and this case has not been substantiated, but has been found to be otherwise, in that the building has been found to be in a sound condition although it Js about 50 years old. In those circumstances, the learned Judge was obliged to negative the bona fides of the landlord.

12. In Ramanatha Iyer v. Bathul Bai, 1971-2-Mad LJ 383 Ramanujam J., while considering a case arising out of an application under Section 14(1)(b) of the Act, repelled the contention that whenever an application for demolition and reconstruction is made, a prior sanction of the Municipality should have been obtained. The learned Judge observed that the Act nowhere provides that a petition for demolition and reconstruction should be made only after getting the required sanction from the Municipality. In that decision, the learned Judge also discountenanced the proposition that in a notice preceding the action for eviction, the purpose for eviction is sought must be set out.

13. In the light of the above principles, it becomes necessary to consider as to whether the courts below have correctly applied the ratio on the question of bona fides under Section 14(1)(b) of the Act. Learned counsel appearing for the respondent would suggest that this court, exercising revisional jurisdiction under S, 25 of the Act shall not re-assess and review this question. Section 25 of the Act is wide enough in giving power to this court for the purpose of satisfying itself as to the legality, regularity, or propriety of the order of or proceeding before the courts below. This has been recognised by Gokulakrishnan J. in Arumugham v. National Palayakot Co., 1973-2 Mad LJ

380. When the Courts below misconstrued the principles to be applied or acted in ignorance of the principles deducible from the judicial precedents of this court with regard to the question involved, it will be certainly within the ambit of the powers of this court to correct and annul such improper, irregular and illegal orders.

14. Coming to the question involved in the present cases, the landlady wanted the building initially for her own use and occupation. The petitions filed to that effect under Section 10(3)(a)(iii) of the Act have been followed by petitions under Section 14(1)(b) of the Act. The averments in the petitions under Section 14(1)(b) of the Act do refer to the earlier petitions and the averments indicated that the demolition and reconstruction of the building is for her own requirements. It cannot be said that the two claims are contradictory to one another, The courts below have erroneously taken this as a factor indicating the lack of bona fides on the part of the landlady. The fact that she obtained sanction for demolition and reconstruction subsequently is also put against the landlady. The ratio enunciated by Ramanujam J, in Ramanatha Iyer v. Bathul Bai, 1971-2 Mad LJ 383 discountenances such a consideration to test the bona fides. The courts below found that the landlady has got the means to carry out the work of demolition and reconstruction and her affluence is also taken against her. Another factor which has been taken into consideration by the courts below in negativing the bona fides of the landlady is that in 1962 there was a move by the landlady to get enhanced rent. This may not be a relevant factor to consider the question of bona fides in view of the fact that the present petitions came to be filed practically a decade later. The anxiety on the part of the landlords to get reasonable rent due to change of times and costs of living and equally so the tenacity of the tenants to stick on to the old rents, will not always be a relevant factor to adjudge the question of bona fides one or the other way, Each case will have to be decided on its own facts, In the present case, the time lag practically waters down this theory, even if that could be tenable under other circumstances, I find that there is no finding rendered by the courts below that the building is in a sound condition so that this factor may be taken into consideration to negative the bona fides of the landlady. On an overall consideration, I find that the courts below have made a wrong approach to the question of bona fides in derogation of the well laid down principles in the judicial precedents of this court on this question.

15. I find that the orders of the courts below are vitiated and they are improper, irregular and incorrect and accordingly they are set aside and the petitions for eviction filed by the landlady are allowed. These revisions are allowed. There will be no order as to costs in both these revisions.

16. Taking into consideration the facts and circumstances of the case and also the fact that the building concerned is not a residential one, I feel sufficient time should be given to the tenants-respondents in the present revisions to vacate the building in their occupation. Mr. O.V. Baluswami, learned counsel for the petitioner in these revisions, is agreeable for the grant of 11 months time. Hence the respondent in each of these revision petitions is granted eleven months time to vacate.

17. Application allowed.


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