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N. Sambasivam Vs. Abdul Sattar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1982)1MLJ75
AppellantN. Sambasivam
RespondentAbdul Sattar
Cases ReferredK. Krishnan v. Munusamy
Excerpt:
.....the view that the work to be undertaken by the petitioner is effectively to-change the entire phase of the building, its cubic content and its size. ..a fortiori, in a case like the one before me where a material change is being effected in the structure and the identity and contents of the building, the work undertaken by the petitioner as disclosed in the sanctioned' plan would certainly amount to demolition and reconstruction of the building. we are strictly concerned with the requirement of section 14(1)(b) and unless the requirement of the section is satisfied, no landlord will be entitled to ask for eviction under that section. these facts clearly to show that the relationship between the and lord and the tenant was not smooth at he time of the institution of the proceedings..........premises is shown in, yellow colour. no condition was imposed at the time when the plan exhibit p-1 was sanctioned for construction of staircase for the up-stair. exhibit p-1 is described as the plan showing the proposed construction and alteration to the existing building bearing door no. 11, gopalapura'm, second street, 72nd division, madras. in another plan filed by the landlord, viz., exhibit p-2, the proposed additional construction and alterations are the same as that in exhibit p-1. the order of sanction in exhibit p-1 is stated to be made on 30th july, 1977, whereas the order of sanction in exhibit p-2 is stated to be 1st october, 1977, i.e., two months later after the sanction of plan in exhibit p-1. but in exhibit p-2 we find a condition that the plan is.....
Judgment:
ORDER

R. Sengottuvelan, J.

1. This civil revision petition is filed' by the landlord, the owner of the premises bearing Door No. 11, Gopalapuram, Second1 Street, Madras-86 against the order of the appellate authority and the Third Judge of Court of Small Causes, Madras in H.R.A. No. 160 of 1978. The landlord originally filed an application in H.R.C. No. 2052 of 1975 on the file of the Court of the Rent Controller and the 7th Judge of Court of Small Causes, Madras seeking to evict the tenant, the respondent herein, on the ground that the tenant had committed willful default in payment of rent from December, 1974 to June, 1975 and on the ground that the landlord required the premises for the purpose of demolition and reconstruction. The learned Rent Controller after considering the oral and documentary evidence let in the case came to the conclusion that the case of the landlord that the tenant is guilty of willful default in payment of rent cannot be upheld. The learned Rent Controller also found that the claim of the landlord for eviction on the ground that he required the premises for demolition and reconstruction to be bona fide and ordered eviction of the tenant.

2. As against the orders of the Rent Controller evicting the tenant under Section 14(1)(b) of the Tamil Nadu Buildings (Lease-and Rent Control) Act (hereinafter referred to as the Act) the tenant filed an appeal to the appellate authority and the Third Judge of the Court of Small Causes, Madras in H.R.A. No. 160 of 1978. The learned, appellate authority after examining the orders of the Rent Controller and after going through the evidence in this case came to. the conclusion that there is no evidence to ;show that the proved that he has got means to reconstruct the building and that the claim of the landlord under Section 14(1)(b) of the Act is not, bona fide and allowed the appeal of the tenant and dismissed the Rent Control Petition. As against the orders of the appellate authority this civil revision petition has been filed by the landlord questioning the orders of the appellate authority.

3. On behalf of the, civil revision petitioner it is contended that the appellate authority had failed to note that the landlord has submitted plan for reconstruction of the premises and that the same had been sanctioned by the authorities concerned and that the appellate authority erred in assuming that the landlord has no means. It is also contended on behalf of the civil revision petitioner that the landlord bona fide requires the premises for demolition and for the purpose of putting up an up stair on the premises. In order to appreciate the case of the civil revision petitioner, certain facts will have to be stated.

4. The premises which is the subject-matter of this petition is a small shop used for non-residential purposes forming part of door No. 11, Gopalapuram, Second Street, Madras-86. The said shop was leased out to the tenant, the respondent herein, for the purpose of conducting a tailoring shop. The case of the landlord in the rent control petition is that the petition-mentioned building is old and in a dilapidated condition and that he applied to the Corporation for the sanction of the plan and that he has got ample means to construct a new building instead of the old building. The landlord had also given the necessary statutory undertaking in the Rent Control Petition. He examined himself as P.W. 1 and he filed two plans Exhibit P-1, which is said to be the plan sanctioned and Exhibit P-2 which is said to be the plan for reconstruction. It is also the case of the landlord that as per Exhibit P-2 the Corporation authorities directed the demolition of the shop in the occupation of the tenant and as such the landlord requires the premises for demolition in compliance with1 the direction of the Corporation authorities and for putting up an up stair as mentioned in the plan. The case of the tenant, the respondent herein, is that the endorsement in Exhibit P-2 that the building licence is given subject to the condition that the shop portion in the occupation of the tenant is to be demolished is a manipulation. The tenant denies building is old and that the landlord had not the case of the landlord that the landlord requires the premises for the purpose of demolition and reconstruction.

5. No doubt under Section 16(1)(b) the landlord is entitled to evict the tenant from any premises if the same is bona fide required demolishing it and if such demolition is to be by the landlord for the immediate purpose of made for the purpose of erecting a new building on the site of the building sought to be demolished. In assessing the bona fide of the landlord, the means of the landlord to undertake such new construction, the existing condition of the building and the fact that preparation is made by the landlord by way of getting the plan for construction of a new building from the municipal authorities, are relevant factors to be considered. But at the same time if the claim of the landlord is oblique or per se dishonest made with the sole aim of evicting the tenant, the claim will have to be negatived.

In the case reported in Neta Ram v. Jiwan Lal (1962) 2 S.C.R. 625, a case dealing with the Patiala and East Punjab States Union Urban Rent Restriction Ordinance, the Supreme Court observed as follows:

Reading these provisions as a whole, it is obvious that if the landlord's need is genuine and he satisfies the Controller, he can obtain possession of the building or the land, as the case may be. If however, he does not re-erect the building and puts it to any other use or lets it out to another tenant, the former tenant can apply to be put back in possession. Clause (b) clearly shows both affirmatively and negatively that the landlord must satisfy the Controller about his claim, before he can obtain an order in his favour. The Controller has to be satisfied about the genuineness of the claim. To reach this conclusion, obviously the Controller must be satisfied about the reality of the claim made by the landlord, 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. The clause speaks not of the bona fides 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 lona 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 to reconstruct, in the mind of the landlord. This intention must be honestly held in relation to the surrounding circumstances.

In the case reported in Sundaram v. A.D. Peter (1966) 1 M.L.J. 342, Natesan, J., observed as follows:

It may be pointed out that this Court has recently in more than one case emphasised that it is not always the essential requisite for the application of Section 14(1)(b) that the building should be old and decrepit. Old and decrepit state of the building may, in certain cases, be the requirement for demolition. There may be other grounds also for requiring possession of the building for demolition and reconstruction.

In the case reported in M. Pattabiraman v. The Accommodation Controller, Madras and Anr. (1971) 84 L.W. 775 Ramaprasada Rao, J., as he then was, quoting with approval of the observations of the earlier decision of this Court observed as follows:

The quality and content of the expression bona fide appearing in the various Sections of the Act and for purposes there enumerated have to be weighed and construed on different lines under different circumstances having regard to the context in which the expression appears. 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 the petitioner is entitled to an order of eviction in the ordinary course, subject of course, to the other conditions prescribed by the Act being satisfied... If therefore, the landlord seeks for release of the building for the immediate purpose of demolishing and reconstructing a building which includes a part of the building then factually he has to verify whether the alteration or the modification sought would amount to demolition. I have already expressed the view that the work to be undertaken by the petitioner is effectively to-change the entire phase of the building, its cubic content and its size. More than anything else the roof is sought to be removed and substituted by another of a different variety altogether... A fortiori, in a case like the one before me where a material change is being effected in the structure and the identity and contents of the building, the work undertaken by the petitioner as disclosed in the sanctioned' plan would certainly amount to demolition and reconstruction of the building.

In the case reported in K. Krishnan v. Munusamy : AIR1979Mad50 , a Division Bench of this Court observed as follows:

A change of the roof of a building will' not by itself amount to demolishing a building and putting up a new building on the site of the old building, and to such a case, Section 14(1)(b) will not be attracted. The Appellate Authority found that the plan produced by the landlord did not envisage a demolition of the building. On the other hand, it only contemplated a change of the roof of the building. Having adverted to this fact, the Appellate Authority observed that if the landlord violates the Rules of the Corporation and proceeds to made changes deviating from the plan, it is not the concern of the tenant and it would be for the Corporation to take action against that landlord. We are not concerned with any violation of the Corporation Rules in this case. We are strictly concerned with the requirement of Section 14(1)(b) and unless the requirement of the section is satisfied, no landlord will be entitled to ask for eviction under that section. He must establish that he is going to demolish the building and erect a new building on the site. That has not been done in this case. Our revisional powers under Section 25 of the Act are wide enough to correct not only illegality but also improprieties. We, therefore, reverse the decision of the Appellate Authority.

Bearing these principles in mind we have to examine the facts of this case to find out whether the claim of the landlord is bona fide. The landlord had sent a letter Exhibit R-l to the tenant claiming an enhanced payment of rent of Rs. 5. The evidence of the tenant is that he refused to pay the enhanced rent and that is the reason whey the landlord has come forward with a false case that he equires the premises for demolition and re-construction. It is also the evidence of the tenant as R.W. 1 that the landlord had made in attempt to pull down the zinc sheet roofing >f the shop and that he had given a criminal complaint to the police. These facts clearly to show that the relationship between the and lord and the tenant was not smooth at he time of the institution of the proceedings under Section 14(1)(b) of the Act.

7. With reference to the construction Exhi bits P-1 and P-2 are the two plans filed by he landlord to show that he applied for sanction for the proposed reconstruction from the Corporation. A perusal of both the plans Exhibits P-1 and P-2 will show that the proposed reconstruction is to be undertaken on he up-stair of the premises. Both these plans lo not show that any construction is to be made in the place where the petition mentioned shop stands. Exhibit P-1 is the plan sanctioned by the Madras Metropolitan Development Authority on 30th July, 1977 as per the proceedings of the Madras Metropolitan Development Authority in M.G. No. 1855|n, dated 50th July, 1977. In this plan the proposed In stair portion and the Garage portion to be newly constructed are shown in red colour. The proposed stair-case to be constructed behind the petition-mentioned shop is also shown in red colour. The petition-mentioned premises is shown in, yellow colour. No condition was imposed at the time when the plan Exhibit P-1 was sanctioned for construction of staircase for the up-stair. Exhibit P-1 is described as the plan showing the proposed construction and alteration to the existing building bearing Door No. 11, Gopalapura'm, Second Street, 72nd Division, Madras. In another plan filed by the landlord, viz., Exhibit P-2, the proposed additional construction and alterations are the same as that in Exhibit P-1. The order of sanction in Exhibit P-1 is stated to be made on 30th July, 1977, whereas the order of sanction in Exhibit P-2 is stated to be 1st October, 1977, i.e., two months later after the sanction of plan in Exhibit P-1. But in Exhibit P-2 we find a condition that the plan is sanctioned subject to the condition that the shop in front is to be demolished within six months. The landlord as P.W. 1 states: that Exhibit P-1 is the sanctioned plan and that Exhibit P-2 is the sanctioned plan for construction of the up-stair portion. No explanation is forthcoming as to why there are two plans for the sanction of the same construction and addition and why no condition is imposed in one plan and a condition that the petition-mentioned shop is to be demolished within six months is imposed in another plan. It is also not the case of the landlord that the presence of the shop infringes any of the building rules. In the absence, of proper explanation as to the presence of two plans for the construction and as to why a condition for demolition of the petition-mentioned shop is imposed only in Exhibit P-2, the case of the tenant that the endorsement in the plan that the petition-mentioned shop should be demolished within six months is procured just for the purpose of evicting the tenant will have to be accepted. Though in the application, the landlord stales that the building is old and also in dilapidated condition, he had not even spoken a word in his evidence about the condition of the building before the Rent Controller. This is also a circumstances against the bona fides of the landlord.

8. It is also in evidence that there are other shops let out for the purpose of Coffee business within the same compound and that the landlord had not asked for the eviction of the same for the purpose of reconstruction. The landlord also had not let in evidence to show that he has got sufficient means to undertake the reconstruction of the building. All these circumstances go to show that the claim of the landlord that he requires the premises for demolition and reconstruction is not bona fide and the conclusion arrived at by the appellate authority cannot be said to be incorrect.

9. An argument is also advanced on behalf of the tenant that as per the plans Exhibits P-1 and P-2, no construction is proposed to be put up on the site on which the petition-mentioned shop stands and as per Section 14(1)(b) of the Act, the tenant is entitled to eviction only if he proposed to erect a new building on the site of the building sought to be demolished and hence the landlord is not entitled to an order of eviction. This question need not be gone into since there are sufficient materials to show that the claim of the landlord is not bona fide and on which the claim can be disposed of. There are no merits in the, civil revision petition and the same is dismissed. However, there will be no order as to costs.


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