Skip to content


S.A.M. Jameema Beevi and anr. Vs. Easwarlal Patel and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1979)2MLJ355
AppellantS.A.M. Jameema Beevi and anr.
RespondentEaswarlal Patel and ors.
Cases ReferredRahalajmal Khatumal v. T.V. Brothers.
Excerpt:
- .....me by learned counsel for the respondents. but the question whether the petition filed by the power-of-attorney agent of the landladies was maintainable in law was the main subject which was discussed by both the rent controller and the appellate authority. whilst the rent controller held that the petitions were maintainable, and granted an order for eviction, since he was satisfied that the landladies request through their power-of attorney agent was bona fide, the appellate authority came to a different conclusion. the appellate authority was of the view that, even though the petition filed under section 14 (1)(b) of the act was reflective of the bona fide of the landladies, yet the undertaking as required under section 14 (2)(b) of the act given by the power-of-attorney agent was.....
Judgment:

T. Ramaprasada Rao, C.J.

1. These four civil revision petitions arise out of a common order made by the Rent Control Appellate Authority in an application filed by the petitioners as landladies for evicting the four tenants, each of whom is a respondent in each of these civil revision petitions, on the ground that the petitioners required the premises for the purpose of demolition and reconstruction. The Rent Controller as well as the Appellate Authority went into the question whether the petitioners satisfied all the prescriptions laid down in Section 14 (1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act (XVIII of 1960), and the concurrent finding of fact is that the petitioners have already established and manifested their bona fide intention to demolish the building and put up a construction as soon as they obtain delivery of possession of the demised premises. This concurrent finding of fact has not been challenged before me by learned Counsel for the respondents. But the question whether the petition filed by the power-of-attorney agent of the landladies was maintainable in law was the main subject which was discussed by both the Rent Controller and the Appellate Authority. Whilst the Rent Controller held that the petitions were maintainable, and granted an order for eviction, since he was satisfied that the landladies request through their power-of attorney agent was bona fide, the Appellate Authority came to a different conclusion. The Appellate Authority was of the view that, even though the petition filed under Section 14 (1)(b) of the Act was reflective of the bona fide of the landladies, yet the undertaking as required under Section 14 (2)(b) of the Act given by the power-of-attorney agent was incompetent, as the penal consequences for disobedience of the undertaking as provided under Section 33 (3)(b) of the Act cannot be availed of against the landladies, since they did not personally give the undertaking themselves. In short, the opinion expressed by the Appellate Authority was that, even if it could be assumed that the power-of-attorney agent, who filed the petition, could obtain an order of eviction, he was not competent to give an undertaking as required under Section 14 (2)(b) of the Act and in that sense the application for eviction was not maintainable. It is as against this order of dismissal of the petitions on the above legal ground the present civil revision petitions have been filed by the landladies represented by their power-of-attorney agent.

2. In order to appreciate the only contention raised before me, it is necessary to refer to the salient provisions of the power-of-attorney given by each of the landladies, who are co-owners, to the person who presented the petition in that capacity. The power-of-attorney has been registered and it was produced before the Rent Controller and the two deeds have been marked as Exhibits P-16 and P-17. As the recitals in each of the power-of-attorney are the same, it is sufficient to note one of them and the recitals therein. The power is a general one. Under Clause (1) the attorney is authorised to let the property to a tenant at such rates as may be favourable. Under Clause (2) he is authorised to file petitions for fixation of fair rent, for eviction of tenants before the competent authorities and further prosecute the proceedings in appeals before the statutory functionaries. Clause (9) enables the attorney to carry out repairs, remodel or renovate, reconstruct or alter all or any of the landlady's properties whenever necessary and for that purpose incur the necessary-expenses and to engage qualified workmen to carry out the aforesaid items of work. In the last paragraph of the power, the landlady agrees to ratify and confirm all the acts, deeds and things which the said attorney may lawfully do or cause to be done by virtue of the power-of-attorney, as if such acts, deeds and things were done by the landlady herself in her own person.

3. The definition of landlord under the Act should be noticed immediately. Under Section 2(6) of the Act, the definition of 'landlord' is as follows:

'landlord' includes the person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another or on behalf of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent, if the building were let to a tenant.

Under the definition any person who is receiving or is entitled to receive the rent whether on his own account or on behalf of another or as an agent is, therefore, privileged to file an application for eviction under the provisions of the Act. Section 10 sets out the various conditions under which a landlord can seek for the eviction of a tenant. For our purpose the non obstante Clause in Section 10 (8) is relevant It reads as follows:

'Notwithstanding anything contained in this section no person who is receiving or is entitled to receive the rent of a building merely as an agent of the landlord shall except with the previous written consent of the landlord, be entitled to apply for the eviction of a tenant.

4. It is seen from Section 10 (8) that, if a person is authorised to receive the rent or is entitled otherwise to receive the rent merely as an agent of the landlord, he will not, without the previous written consent of the landlord, be entitled to apply for the eviction of a tenant. The emphasis, therefore, is on the expression 'merely as an agent'. If the receipt of rent is only as an agent, then such an agent should be equipped with a permission given in writing previously by the landlord to entitle him to ask for the eviction of a tenant. It is such an emphasis on the term 'surely', which was noticed by this Court in Rahalajmal Khatumal v. T.V. Brothers. (1961) 1 M.L.J. 150 Srinivasan, J. observed that the word 'merely' appearing in Section 7(7) of the Madras Buildings (Lease and Rent Control) Act, XXV of 1949, which is in parimateria with Section 10 (8) of the present Act, qualified the extent of the power of the agent and that, where such power was limited only to receiving the rent or to be entitled to receive the rent, such an agent could not apply for the eviction of a tenant, unless he was armed with the further power in the shape of previous written consent of the landlord. In the course of the judgment, the learned Judge also observed that it did not mean that, notwithstanding that the agent held a general power which specifically included the power to take steps in eviction proceedings on behalf of the landlord, even then there should be a separate written consent for that purpose. In that' case, the learned Judge noticed a power-of-attorney which authorised the atorney to continue, prosecute and defend all legal proceedings in civil, criminal, revenue and rent control Courts and also authorised him to take eviction proceedings against defaulting tenants. Under those circumstances, the learned Judge was of the view that a separate written power for filing an application for eviction of the teant was not necessary. Apart from the fact that under Section 188 of the Indian Contract Act agent having an authority to do an act has authority to do every lawful thing which is necessary in order to do such act, the recitals in the power-of-attorney clearly show that the attorney in the instant case has the power to file an application, without any further written consent by the landlady, even in a case where eviction is sought under Section 14 (1)(b) of the Act. This is because the attorney is authrised to reconstruct, alter, remodel or renovate the landlay's building, and to incur the necessary expenses for the purpose, by engaging qualified workmen. This power given under the power-of-attorney is enough to safely and reasonably conclude that the agent has been authorised to demolish the building and reconstruct the same. It is common knowledge that reconstruction cannot be done without demolition.

5. Section 14 is a special provision in the Act for recovery of possession by the landlord for repairs which cannot be carried out without the building being vacated, Section 14 (1)(b) provides for another contingency in which recovery of possession for reconstruction of the building can be sought for. It says that an application can be made by the landlord, if the building is required bona fide by the landlord for the immediate purpose of demolishing it and if such demolition is to be made for the purpose of erecting a new building on the site of the building sought to be demolished. If the bona fide is established, then the statutory authorities under the Act can pass an order directing the tenant to deliver possession of the building to the landlord before a specified date. But such an order, however, is circumscribed by the specific prescription in Section 1,4 (2)(b) of the Act. Section 14(2)(b) provides that no order directing the tenant to deliver possession of the building under Section 14 (1)(b) of the Act should be passed, unless the landlord gives an undertaking that the work of demolishing any material portion of the building shall be substantially commenced by him not later than one month and shall be completed before the expiry of three months from the date, he recovers possession of the entire building or before the expiry of such further period as the Controller may, for reasons to be recorded in writing, allow. For the purpose of completion, it is convenient to refer to the penalties provided under Section 33 of the Act. For our purpose, we are concerned with the penalty contemplated under Section 33 (3)(b) of that Act. That sub-section provides:

Any landlord who recovers possession on the ground specified in Clause (b) of sub-section (1) of Section 14 and fails to carry out the undertaking referred to in Clause (b) of sub-section (2) of the said section without any reasonable excuse shall, on conviction be punishable with fine which may extend to two thousand rupees.

6. Having noticed the relevant provisions of the Act and the express recitals in the power-of-attorney, it is for consideration whether the order of the Appellate Authority is right. In the petition for eviction itself, the attorney who filed the petition on behalf of the landladies, has stated as follows in paragraph 5:

The petitioners state that the premises bearing door No. 87/89, N. S. C. Bose Road, Madras-1 is very old and it is required to be demolished immediately. The petitioners intend and have decided to demolish the building as it is pretty old and also for the purpose of erecting a new building on the site of the building. After the reconstruction they require the said premises for their own use and occupation. They have taken other necessary steps for the erection of a new building on the site of the building.

On a fair reading of this paragraph, it is clear that the undertaking which is contemplated under Section 14 (2)(b) of the Act has been given. The attorney says that the petitioners have decided to demolish the building and that they intend to erect a new building on the site. The mere absence of a reference in the undertaking to the fact that they would demolish the building within a month and complete the reconstruction within three months from the date of the order would not detract from the same being reasonably understood as an undertaking to demolish the building as per the provisions of the Law within the meaning of Section 14 (2)(6) of the Act. It is not in dispute that the absence of a reference to the period within which the demolition has to be undertaken is not fatal to the maintainability of the applications. What is, however, stressed is that the power-of-attorney cannot give the undertaking under Section 14 (2)(b) of the Act.

7. This primary contention has to be highlighted in the context of the recitals in the power-of-attorney. I have already expressed the view that under Section 5 of the power-of-attorney, the attorney is entitled not only to carry out repairs to the building or renovate the same, but also to remodel, reconstruct or alter the property and incur the necessary expenses 'for the purpose. Under the power-of-attorney he is also authorised to do all acts, deeds and things which he may lawfully do or cause to be done.

8. The Appellate Authority was of the view that the penal provisions under Section 33 (3)(6) of the Act cannot be legally enforced against the principal, namely, the landladies. I am unable to agree. The power-of-attorney as already noticed, contains a provision by which the landladies have agreed to confirm and ratify all acts, deeds and things which the attorney may lawfully do or cause to be done. This provision would certainly enable the competent authority under the Act to take penal action not only against the agent but also against the principal for any failure to keep up to the undertaking. The Appellate Authority surmises that an unscrupulous landlord might avoid penal consequences by putting the attorney in the. forefront and asking him to give an undertaking and thereafter attempt to wriggle out of it by stating that he was not responsible 'for circumstances of each case. Under the power-of-attorney under review, power is given to the attorney to carry out repairs, remodel, renovate, reconstruct or alter all or any of the properties, in the necessary expenses for the same and engage qualified workman to carry out the said items of work. The undertaking in the present case is, therefore, one coming within the meaning of Section 14 (2)(b) of the Act, and the principal or landlord cannot' escape the penal consequences for the nonperformance of the undertaking by astute arguments or contentions on the basis that the undertaking was only given by the agent.

9. I find therefore that the undertaking given by the power-of-attorney is one which satisfies the requirements of Section 14 (2)(b) of the Act and that such an undertaking binds the principal in view of the express recitals in the power-of-attorney, and that no more undertaking was necessary from the landladies themselves. I also find that such an undertaking would bind the landladies in each of the petitions. I also accept the concurrent finding of fact rendered by the Tribunals below on the question of the bona fides of the landladies in their requirement of the property for the purpose of demolition and reconstruction. I am therefore, constrained to set aside the order of the Appellate Authority, on the question of the maintainability of the application. I bold that the application is maintainable, and that the petitioners are entitled to an order of eviction, under Section 14 (1).(b) read with Section 14 (2)(b) of the Act. Accordingly, the order of the Appellate Authority is set aside, and that of the Rent Controller is restored. The respondents-tenants are given four months' time to vacate.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //