1. The tenants against whom the authorities below have passed an order for eviction on the applications filed by the respondents in these civil revision petitions under S. 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960, as amended by Act 23 of 1973 (hereinafter referred to as the Act), are the petitioners herein. The premises in question are adjacent non-residential buildings situate in N.S.B. Road, Tiruchirapalli in the occupation of the petitioners. Admittedly, the respondents in these civil revision petitions who are related as son and father are the owners of these buildings and the petitioners have been in occupation on payment of a monthly rent of Rs. 50. According to the respondents, their buildings in the occupation of the petitioners are old and aged more than 60 years and no repairs have been done. Claiming that the buildings in the occupation of the petitioners are situate in a commercially busy locality and that if the existing buildings are demolished and new constructions are put up with all modern amenities, they will fetch a good income and stating that they are possessed of sufficient means to undertake the project of demolition and reconstruction and had also taken the necessary steps in that regard, the respondents filed H. R. C. 0. P. Nos, 295 of 1979 and 296 of 1979 under S. 14(1)(b) of the Act playing for an order of eviction against the petitioners.
2. The petitioner in C. R. P. 1253 of 1982 disputed the claim of the respondent therein that the building in his occupation is an old one and requires demolition and reconstruction. The means of the landlord as well as his bona fides were questioned. The building in the occupation of the petitioner in C.R.P. 1253 of 1982 according to him was not an old one and was not in need of demolition and reconstruction. The petitioner also put forward a plea that there was a demand for enhanced rent but that it was refused to be complied with which led to an attempt to disconnect the electricity service connection which necessitated the filing of a suit and it ended in a decree and, therefore, the requirement of the. Respondent was characterized to be not bona fide.
3. The petitioner in C.R.P. 1398 of 1982, denied that the building in his occupation is an old one. The building, according to him, was in good repair and therefore did not require to be demolished. The means of the respondent in C.R.P. 1398 of 1982 to demolish the existing structure and put up a new construction was also disputed. The application for eviction was characterised as one lacking in bona fides.
4. On the basis of a joint memo filed by the parties, the evidence recorded in H.R.C.O.P. 295 of 1979 out of which C.R.P. 1253 of 1982 has arisen, was agreed to be treated as common evidence in both the proceedings. Before the Rent Controller, (Principal District Munsif), Tiruchirapalli, on behalf of the respondents Exs. A-1 to A-12 were filed and the respondent in C.R.P. 1398 of 1982 was examined as P. W. I and an Engineer and the Conunissioner who made a local inspection of the premises were examined as P. W. 2 and P. W. 3. while, on behalf of the petitioners, only the petitioner in C.R.P. 1253 of 1982 alone was examined as R. W. 1. The reports of the Commissioner were marked as Exs. C-1 and C-2 the report submitted by the Engineer was marked a,9 Ex. C-3. After a consideration of the oral and documentary evidence, and the reports of the Commissioner and the Engineer, the Rent Controller took into account the different aspects which have to enter the verdict in dealing with an application under S. 14(1)(b) of the Act as pointed out by the Supreme Court in Metal ware and Co. v. Bansilal Sarma, : 3SCR1107 and found that the buildings the question are more than go years old, that the buildings are in a bad condition, that the respondents had established possession of sufficient means to undertake the project of demolition and reconstruction, that steps had been taken by the respondents to demolish the buildings and also to reconstruct them, and that they had obtained permission from the Municipality and had also secured an approved and sanctioned plan. The circumstance that a shop to the west of the buildings in the occupation of the petitioners belonging to the mother of the respondent in C.R.P. 1253 of 1982 and the wife of the respondent in C.R.P. 1998 of 1982, and the entire upstairs portion had been kept vacant for the past five years was held to clearly establish that the requirement of the respondents for the purpose of demolition and reconstruction was bona fide. On these findings, an order of eviction was passed against the petitioners. Aggrieved by the order of the eviction, the petitioners preferred C.M.A. 101 of 1981 and 102 of 1981 to the Appellate Authority (Subordinate Judge) Tiruchirapalli. On an exhaustive reconsideration of the entire evidence and other relevant circumstances, the Appellate Authority concurred with the conclusions of the Rent Controller and, upholding the order of evi6tion, dismissed the appeals. It is the correctness of this that is challenged by the petitioners in these civil revision petitions.
5. Before proceeding to consider the matter on its merits, it hag to be stated that the main argument was raised' by Mr. N. C. Raghavacharil learned counsel for the petitioner in C.R.P. No. 1398 of 1982, and the learned counsel for the petitioner in C.R.P. 1253 of '1982, merely adopted his argument. It would be convenient to refer to the plan Ex. A-5 in order to understand and appreciate the, contentions urged. Ex. A-5 shows that there are three shops flanked by two streets N.S.B. Road on the north and Double Mall Street on the South. Shop No. I in the western extremity belongs to one Lakshmi Animal, who is none other than the mother of the respondent in C.R.P. 1253 of 1982 and the wife of the respondent in C.R.P. 1398 of 1982. The shop east of shop No. I shown as shop No. 2 in Ex. A-5 belongs to the respondent in C.R.P. 1398 of 1982 and the shop east of that shown as shop No. 3 in Ex. A-5 belong to the, respondent in C.R.P. 1253 of 1982. The eastern wall of shop No. 3 is a common wall common to Shop No. 3 and the adjacent shop on the east. There is no dispute between the parties regarding this. The learned counsel for the petitioner in C.R.P. 1298 of 1982 submitted that nothing was mentioned in the notice regarding the condition of the buildings in question and that in the applications for eviction also, there was no averment touching upon the condition of the buildings. In addition, it was pointed out relying upon the first report of the Commissioner, marked as Ex- C-1 that the condition of the buildings was good and therefore there was no need for any demolition and reconstruction. The proposed changes in the buildings, according to the learned counsel, considered in the light of the evidence of the respondent in C.R.P. 1398 of 1982 in examination, showed that what was contemplated was only a removal of the existing ceiling, keeping the walls intact and a mere change of roofing, retaining. The common wall, would not amount to demolition and reconstruction within the meaning of S. 14(1)(b) of the Act Reliance in this connection was placed by the learned counsel on the decisions in M. Kanakavel Pillai v. Drugs and Chemicals, Kumbakonam, : (1980)2MLJ392 and T_ Thirupathi V. Maimoon Bibi, : AIR1982Mad120 .On the other hand, the learned Advocate General appearing on behalf of the respondents, submitted that the notices Sent clearly set out the requirement of the respondents as one for demolition and reconstruction, that paragraph 5 of the petitions for eviction clearly elaborated this requirement, that the report Fix- C-2 and the evidence of p. W. 2 and P. W. 3 clearly established that the buildings were not In a sound condition, that the Proposed changes as reflected in Ex- A-5 would clearly establish that the cubical content of the existing building, viz-, shops Nos. 2 and 3 would thoroughly and changed. and that it not merely amount -to change Of roof but also one of demolition and reconstruction within the meaning, Of S. 14(1)(b) of the Act. Referring to, the location of the shops in a commercially important locality, it was pointed out by the learned Advocate General that the respondents were desirous of putting their properties to more I profitable use by Pulling down the excluding dilapidated structure .and Putting up pucca modern building and under those circumstances, their requirement would be nothing but bona fide.
6. Whatever might have been the interpretation Put upon S. 14(1)(b) of the Act earlier, the Supreme Court In Metal ware and Co. v. Bansilal Sarma, AIR 1079 SC 1559, steered clear of the two extreme contentions urged in that can and pointed out that the age, condition, means to undertake the project of demolition and reconstruction, steps' taken, actuation and the more profitable use to which the building can be put would all form part of the totality of the circumstances which would go to make up bona fide requirement. It would therefore be necessary to refer briefly to the materials available in this case on these aspects. Ex. A-1 is the earliest document relating to the shops in question and that is dated 8-41-1892. It is thus clear from this document that at the time of the filing of the applications for eviction in 1979, the buildings had been in existence at least for 87 year Ex. A-2 dated 31-3-1978 is a sale deed in favor of one Lakshmi Ammal executed by Panchapakesa Iyer, adopted son of Gopalskrishna Iyer, and his sons and it relates to the western most shop shown as shop No. -1 in Ex. A-5. Therein, a reference is made to the purchase of the property sold on B-11-1892 by Gopalakrishna Iyer. This Property dealt with under Ex A-2 is shown as shop No. I in Ez. A-5. Ex. A-3 dated 31-3-4978 and has been executed In favor of the respondent in C.&P.; 1398 of 1982 by Panchapakesa IM adopted @On of Gopalakrishna Iyer and In$ MOB Tim relates to shop No 2 in ML A-5. There again, the original title to the Property dealt with there under is traced to Ex A-1 in favor of Gopalakrishna IYer. Similarly, in Ex A-4, dated 31-341978 executed in favor of the respondent in C.R.P. 1253 of 1982 relating to shop No. 3 shown in Ex. A-5, there is a reference to the purchase of the property sold there under by Gopalakrishna, iyer on 8-41-1892. Besides, in the document Exs A-3 and A-4, in Annexure I-A, required to be given under the local rules framed under the Stamp Act, the age of the building sold there under has been stated to be 60 years. It is thus established from Exs. A-2 and A-4. That the buildings in the occupation of the are at least 60 years old, A-1 would execute that this building was older 87 years. P. W. I in the course of his evidence has stated that the buildings are 70 or 80 years old. There is no cross-examination on this. P. W. 2 has stated that the buildings are about 80 Yews old and that there has been erosion owing to salinity nothing has been suggested to P. W. 2, regarding the age of the buildings. P. W. 3, on the other hand, would say that from the records it appears that the buildings are 87 years old. There has been no effective cross-examination of P. W. I to P. W. 3 regarding the age of the buildings. The age of the buildings is thus over 6o years.
7. As regards the conditions of these buildings, P. W. ct has stated that the buildings are in such a condition that they would fall, if it should rain heavily as the walls have been built of clay and the plastering and the rafters had completely fallen owing to the erosion due to salinity. P. W. 3 is the Commissioner who visited the premises in question on two occasions. In the first report submitted by him and marked as Ex C-1, P. W. 3 stated that the properties appear to be in a good condition. In his second report, Ex. C-2, the Commissioner stated that the buildings are old buildings and the walls have been built with country bricks and red sand and on removing a box from the rack a vertical crack running from the terrace level was found and that was a crack in the wall and the said crack could not be noticed earlier since it was hidden. Similarly, P. W. 3 found a crack on the cross wall which was seen on both sides of the wall. In the parapet of the upstairs wall also, a crack had been noticed and the cleavage between the rafters and the terrace had also been observed by P. W. 3. The cement flooring had. been noticed to have been patched up In several places. Apart from this, the other portions of the building, which had been kept unused, were also found to be badly damaged. The plastering in the wall was worn out in several places. On the eastern wall there was a big crack of about 2' width and at the place where this wall' touched the crow wall in the upstairs, another crack was also visible on both sides of the wall. The rafters had been found to have been worn out and the roofing was not in a very good condition. The Mangalore tiled roofing was found to be not In good condition, The parapet wall bad also developed cracks and the door had been eaten owing to salinity That the walls gave a hollow sound when tapped with a stick was also noticed by the Commissioner. No objection as such was filed by the petitioners to these features noticed by the Commissioner. In addition, the report of the Engineer Ex. C-3 submitted by P. W. 2 would also establish that the buildings have been constructed with country bricks in mud and that they are about go or 90 years old. Most of the walls were observed to have been eaten up at the foot and deteriorated so much that when tapped with a stick, a hollow sound Was heard in place which indicated that the internal strength, compactness, efficiency, homogeneous empty, stability and the bearing capacity of the~ walls for supporting and holding the weight of the terrace were not thefts A leaky roof was observed to have been plastered with cement to prevent such leakages The Mangalore tiled roof was also found to be highly damaged. The existing doors, windows and other woodwork were found to have been damaged and moth eaten. A vertical crack was observed on the eastern wall of the existing staircase, which indicated sub-soil disturbance below foundation. Ex. C-3 summed up the condition of the building as a damaged one and in an unsafe condition and liable to collapse all of a sudden owing to heavy rain and. vibrations of traffic on the road, P. W. 2 In the course of his cross-examination has also spoken to the existence of a crack and to the fact that he had removed the surface and found that it was a crack in the wall He has also spoken to the other features noticed by him in his report 'Ex. C-3 PW 3 in the course of his evidence has spoken to the cracks noticed by him and the inter-space between the ceiling and the rafters and the damage to the parapet wall. He is also specific that the rear portion of the building is in a bad repair. He is positive that the cracks noticed by him are cracks in the wall and not superficial. Thus, a consideration of the reports Exs. C-2 and C-3 submitted by P. W. 3 and P. W. 2 would establish that the walls of the buildings have developed cracks, that the ceiling and the flooring are not in good condition, that the rear portion of the buildings is also in a dilapidated condition, that the leaky roof has been plastered to prevent such leakage and that the buildings are not in a good condition. Indeed, P. W. 2 who is a retired Executive Engineer of the Public Works Department has clearly stated in his report Ex. C-3 that the entire structure is in a damaged and unsafe condition and is likely to collapse. Nothing has been suggested to P. W. I in the course of his cross-examination as to why the condition of the building as reflected in Ex. C-3 report submitted by him should not be accepted. Ex. C-2 and C-3 and the evidence of P. W. 3 and P. W. 2 would establish that the buildings in the occupation of the petitioners are in a decrepit and dilapidated condition.
8. Regarding the means of the respondents to carry out the project of demolition and reconstruction. it is seen that P. W. 1 has given evidence to the effect that he is getting a monthly rent of Rs. 1000 from his several buildings and that he has ready cash and has also secured facilities from the Bank of Tanjore to the tune of Rs. 1,25 lakhs. Ex. A-8 is a letter to that effect sent by the Bank. There has been no, cross examination of P. W. I at all on this evidence. On the basis of the unchallenged testimony of P. W. 1, the conclusion is irresistible that possession of sufficient means to undertake the project of demolition and reconstruction has been clearly established. It may be mentioned that before this Court no attempt even was made by the learned counsel to attack the conclusion of the authorities below that the respondents have established possession of sufficient means to undertake the project of the demolition and reconstruction of the premises.
9. The steps taken by the respondents to secure demolition and reconstruction may now be adv6rted to. It is seen that the respondents have applied to the Municipality and obtained a sanctioned plan ex. A -5. Thereafter, the respondents have applied for extension of time under Ex. A-6 for putting up the proposed construction. Ex. A-7 is another order for yet another extension for Putting up the building till 31-7-1982. EXs. A-5 to A-7 thus make out that the respondents have also taken the necessary steps to demolish and reconstruct the buildings hi the occupation of the petitioners.
10. It is not in dispute that the buildings in question are situate in a highly important commercial locality in Tiruchirapalli town. Earlier it has been noticed how the shops in question are flanked by two important roads on the north and south viz., N. S. B. Road and Double mall street. P. W. I in the course of his evidence have stated that the other neighboring buildings have upstairs as well and that the buildings in question are in an important business locality. The buildings in question being situated in an important commercial locality, if demolished and reconstructed, would undoubtedly yield a better income. Indeed, it is seen from paragraph 12 of the order of the Appellate Authority that it was not disputed by the petitioners that in order to get higher income, the respondents had proposed to demolish and reconstruct the buildings in question. Apart from the above considerations, there is one important circumstance which clearly establishes that the requirement of the respondents is nothing but bona fide. The western most shop belonging to the mother of the respondent in C. R. P. 1253 of 1982 and the wife of the respondent in C.R.P. 1398 of 1982, had been remaining vacant for about five years past. p. W. 3 has so stated in the course of his cross-examination. Besides, he has also stated that the upstairs portion of the premises had not been used for about five years. Thus, the keeping of the western most portion of the premises as well as the upstairs portion vacant for about five years clearly indicates that the respondents were not anxious to secure rents but that they had genuinely entertained the de~ sire to demolish the western shop No. 1 and the upstairs portion along with the shop) Nos. 2 and 3 in Ex. A-5, as and when they fell vacant in order that the whole existing structure may be pulled down and a new structure may be put up instead. Thus. on a consideration of all the relevant aspects, it is clear that the respondents have established that their requirement under S. 14(1)(b) of the Act is bona fide.
11. No doubt, in the notices issued under Exs. A-9 and A-10, the respondents have not stated in so many words that the condition of the buildings in question is such that the buildings are required for purposes, of demolition and reconstruction. However, the requirement for purposes of demolition and reconstruction has been set out and that has also been understood by the petitioners as having been made also on the ground of the condition of the buildings, as otherwise under Exs. A-11 and A-12, there was no need for the petitioners to say that the buildings do not require demolition and reconstruction. Apart from this, it is seen that in paragraph 5 of the applications for eviction, ' after setting out the age of the buildings, the respondents have stated that no repairs at all have been effected to the buildings and that would mean that the condition of the buildings was decrepit and dilapidated. The non-mention of the condition of the building specifically under those circumstances is not very material. In the applications for eviction, though there is no positive - averment regarding the condition of the buildings, yet, it has been stated that the buildings were 60 years old and had not seen any repairs at all thereby indicating that the buildings in question are in a decrepit or dilapidated condition. That would be sufficient as an averment regarding the condition of the building, especially when no prejudice has been caused to the petitioners in meeting the case of the respondents. Indeed, it is seen from paragraph 4 of the counter filed by the petitioners that they had understood building case of the respondents that in question are not in good condition as otherwise, there was no need for the petitioners to mention that the buildings in question are not old and they do not require demolition.
12. Regarding the contention that the condition of the buildings was good based on the first report of the Commissioner, it is clear from the second report that Ex. C-2 that the Commissioner did not. Notice those features on his first visit as the walls were hidden by racks. It has already been noticed how the petitioners have not filed any objection to the second report submitted by the Commissioner. The condition of the buildings has to be ascertained, therefore, by a consideration of Exs C-2 and C-3 as well and cannot be merely decided on the basis of the first report which even according to P. W. 3 was not based on an inspection of the walls as the walls were hidden by racks. Under those circumstances, merely on the basis of Ex. C-1, it cannot be concluded that the condition of the buildings in question was good.
13. It now remains to (be) considered whether the changes proposed would amount to demolition and reconstruction or mere change of roofing as contended by the learned counsel for the petitioners. Ex. A-5 is the sanctioned plan and it clearly brings out the changes to be made. The existing north south length is shown as 35' consisting entirely of buildings. Shops 1, 2 and 3 are separated by a wall between shops Nos. 1 and 2 and shops Nos. 2 and 3. Besides, there is also a rear portion in the ground floor and a tiled and a terraced portion in the first floor in the existing building. The proposal as reflected by Fx. A-15 is to demolish the dividing walls between shops Nos. 1 and 2 and 3 and to readjust the space and to confine the length of the building to 25' as against 35' leaving an open space in the front as well as in the rear. The readjusted accommodation m the ground floor consists of a business hall of the dimension of 17' 9' x 26' 6'' and a store room 8' x I f and a staircase as against three shops, one room and a verandah now existing. In the first floor also, corresponding to the business hall in the ground floor, provision has been made for a similar hall in the first floor and other available area in the first floor has also been shown as part of the business hall. It is thus obvious that as a result of the Proposed reconstruction, there is a substantial change not only in the existing structure, but also its cubical content. Indeed in K. Krishnan v. Munuswamy : AIR1979Mad50 it has been stated that the expression 'erecting a new building on the same site' adds to the effect of the word 'demolition' because the very words 'new building' would indicate that something different from what was in existence on the property or on the site to be more accurate, must be brought into being after demolition. It was also further laid down that demolition must circumstantially obliterate the old building and the process of erection must bring into being a new building. The change as reflected in Ex. A-5 clearly establishes that the entire ground floor and the first floor of the existing building will be materially altered and in many respects so that when the building is 'reconstructed in accordance with Ex. A-5 the result would be, a new building with an alteration in the cubical content of the enclosed space and that would be sufficient to establish that the process undertaken would be one of demolition and reconstruction. The reliance placed by the learned counsel for the petitioners on M. Kanakavel Pillai v. Drugs and Chemicals, Kumnakonam : (1980)2MLJ392 is of no avail for in that case there was no evidence to establish the likelihood of a variation in the cubical content of the space. Such is not the situation in this case. Similarly, the other decision in Thirupathi v. Maimoon Bibi : AIR1982Mad120 does not also advance the case of the petitioners as on the evidence, it was found that what was sought to be done, was a mere change of the existing roof and not any reconstruction affecting or altering the cubical content of the existing building. Earlier, it has been pointed out that Ex. A-5 clearly indicates the scope of the demolition as well as reconstruction and that clearly establishes the proposal to completely alter the existing building and bring into being a new structure different in size and shape, length and breadth and in cubical content as well. That cannot therefore be regarded as a mere change of roofing as contended for by the learned counsel for the petitioners.
14. Considerable stress was laid by the learned counsel for the petitioners on the evidence of P. W. 1 in the course of his cross-examination that the wall east of shop No. 3 being a common wall was to be kept intact and that only the other three walls were to be demolished in order to carry out the reconstruction. There is no dispute that the wall east of shop No. 3 in Ex. A-5 is a common wall, common to the respondent in C.R.P. 1253 of 1982 and the adjacent eastern owner. Merely because one of the walls happens to be common wall, the premises does not cease to be a building for purposes Of S. 14(1)(b) of the Act. In cases where a person is the absolute owner of all the four walls, the building, inclusive of the four walls, can certainly be demolished and reconstructed. In a case like the present where one wall is a. common wall, it may be that one common owner of that wall may not be entitled to Pull down that wall in its entirety as it would affect the rights of the neighboring co-owner. But if it is still possible to undertake demolition and reconstruction retaining such a common wall comprised in a building as defined under the Act, then it cannot be stated that in such case there is no demolition and reconstruction at all. In K. Krishnan, v. munuswamy, : AIR1979Mad50 it has been held that demolished must obliterate substantially the old building and by the process of erection, a new building must be brought into existence. Merely by the retention of a common wall. it cannot be stated that the old buildings m this came had not been substantially obliterated or by the proposed reconstruction, a new could not be brought into existence. It is further seen from Ex A-5 in this cam that the proposed construction is such that it is unnecessary to remove the common wall. Ex A-5 shows that three concrete pillars in Bush with the common wall are to be put up and raised up to the first floor level of the Proposed building and they would be sufficient to bear the load. It is thus seen that the reconstruction could be done in this can without disturbing the existing common way but resulting in a totally new structure with an altered cubical content. It is not also possible to read the evidence of P. W. 1 as indicating merely a change of roof. Indeed, P. W. I had stated that his idea is to demolish the existing building and to put up a new building as shown in Ex. A-5. As part of the proposals reflected in Ex. A-5, he has stated that the common wall will be kept intact but pillars will be raised and the roof will be allowed to rest on those Considered in the light of the proposed alterations reflected in A-5, the evidence of P. W. 1, cannot be read as stating that the proposal is only to change the roof and not otherwise to alter the existing building. It is therefore possible to accept the contentions urged on behalf of the petitioners.
15. The authorities below have adverted to all the relevant aspects which should be considered in dealing with an application under S. 14(1)(b) of the Act and have concurrently found on the materials that the requirement of the respondent is bona fide. In Messrs Sri Raja Lakshmi Dyeing Works v. Rangaawmy Chettiar, : AIR1980SC1253 , the Supreme Court has categorically W down that concurrent findings based on evidence ought not to be Interfered with ,in the exercise of the revisional jurisdiction under S. 25 of the Act. On the materials in this case, the authorities below cannot be stated to have committed any error which requires to be corrected in the exercise of the jurisdiction under & 25 ad the Act. Consequently, these civil revision petitions are dismissed with costs, two sets.
16. The learned counsel 11w the petitioners submitted that in the event of this Court upholding the orders of eviction passed by the authorities below, the petitioners may be granted some time to vacate the premises occupation and hand aver vacant possession to the respondents. The learned Advocate General appearing on behalf of the respondents had no objection to grant four months tune to the petitioners for that purpose. Accordingly. The petitioners am granted four months time for this day to vacate and hand over 'vacant profession of-the premises in their to the respondents; but this would be subject to the petitioners an affidavit of undertaking to that effect within a week from this day, failing which the order of eviction could be executed forthwith.
17. Petition dismissed.