A.K.S. Thiyagarajan and Others vs M. Gopal

M. Chockalingam, J.—These two appeals have been preferred from the common judgment and decree of the learned Additional District

Judge, Vellore made in A.S.Nos. 180 and 181 of 1989 dated 28.2.1990 setting aside the judgment and decree of the learned Subordinate Judge,

Arni made in O.S.Nos. 82 and 83 of 1987, dated 28.9.1989.

The appellants herein filed two suits in O.S.No. 82 and 83/87 against the respondent herein seeking delivery of possession of the plaints

schedule properties situated in door Nos. 235 and 236 Gandhi Market Road, Arni Town respectively with the following averments. The said

schedule mentioned non residential buildings belonged to the plaintiffs. It was a new building. The construction was completed and informed to the

local body in March, 1983. The first assessment was also made only in April, 1983. Previously there was an old building which was completely

demolished and a new building was reconstructed and thus the building was exempted from the purview of the Rent Control Legislation and the

Civil Court alone has got jurisdiction. The defendant was a tenant under the plaintiffs in respect of the premises situated in door Nos. 235 and 236

on a monthly rent of Rs. 165 and Rs. 44 respectively. The tenancy was oral and as per the English calendar month. It was a month to month

tenancy. The respondent agreed to vacate as and when demanded. Since the appellants/plaintiffs required the building in the occupation of the

respondent, they called upon the respondent to deliver possession and have also issued a lawyer''s notice dated 24.11.1985 during terminating the

tenancy. The same was served on 26.11.1985. The respondent also sent a reply notice. The respondent/defendant did not deliver possession as

demanded and hence the suit.

Both the suits were contested by the respondent with the following averments in his written statement and additional written statement. The

respondent was a merchant doing essence business and has been a tenant under the plaintiff in respect of the godown Nos. 235 and 236 which

were adjacent and of one block and the tenancy dated back to about 20 years. Owing to business misunderstanding of the respondent with his

near relatives who were close to the plaintiffs, the suit for eviction has been filed and there was no bona fide on the part of the appellants. The

appellants represented that they wanted to put up storied buildings over the godown in the occupation of the respondent so that they might rent

them remuneratively and therefore they requested that the respondent might continue in a portion of the godown No. 236 and continue his business

and after the completion of the superstructure, the respondent might occupy the other portion of the godown in the old tenancy. The respondent

continued in godown No. 236, a part of the godown, while the construction was in progress. Thus the re-occupation of the vacated portion of the

godown after the erection of those superstructure would not amount to lease of new building and the appellants could not press into service the

exemption clause to take the matter out of the purview of the Rent Control Act. The lease was deemed to be in respect of the old building, situated

in door Nos. 235 and 236. Eviction was not maintainable as the lease was subject to the contract that the old tenancy would be continued without

interruption. The demand was made for fresh advance of Rs. 24,000 without receipt and the higher rent and when the demand was not met, the

suit has been filed. Already the respondent has paid an advance of Rs. 10,000. The notice of termination was also not valid. If the eviction was

ordered, it will cause much loss and prejudice to the respondent. The appellants represented that if the respondent could occupy a part of the

godown in No. 236 till the superstructure was completed, the respondent could continue in door Nos. 235 and 236 godown on the old tenancy

after the completion of the superstructure. The appellants agreed to that course. Otherwise the respondent would not have obliged to vacate the

portion of the godown. Since the appellants represented so, they are estopped by the doctrine of promissory estoppel. The proceedings under the

Rent Control Act could alone be taken. The Civil Court has no jurisdiction. There was no cause of action for the suit and hence the suit was to be

dismissed.

It is also contended by the respondent as follows. The appellants have not averred anything when the respondent was inducted as a tenant in the

alleged new buildings 235 and 236. The case of the respondent was that he had been continuously a tenant for number of years and even now

continued as tenant. The notice of the appellants was appropriately replied to by the respondent''s advocate on 2.11.1981 saying that the

defendant would not vacate. Later on the first appellant brought some of this people and made pressure to the respondent and said that an

alternative arrangement could be made if the buildings could be vacated by the end of November 1981, In spite of it, the defendant became

suspicious and hence he did not vacate the building. The plaintiffs had put up the stair case from the road side and constructed the first floor and

while putting up the stair case in the front from the road, substantial width of the godown 235 was obstructed. The respondent carried on the

business in 236 when 235 was built and vice-versa and never moved out of these buildings. The respondent never conducted his business in the

rice mill of the plaintiffs. The said agreement itself being in violation of law and against public policy, the appellants could not rely on it because it

would amount to any furtherance of illegal object. There was no new tenancy in respect of the buildings in 235 and 236. In the plaint also the

appellants had purposefully not spelt out as to when the new tenancy commenced, and hence the suit was not maintainable. The respondent was

paying rent to both the buildings 235 and 236 from December 1981 to the alleged completion of the construction and information to the local body

in March, 1983 and receipts were issued by the appellants for the period, when the said godowns were alleged to have been demolished. Only in

November 1984, the rents were increased and hence it will be clear that in the circumstances there was no fresh lease in respect of the new

building. Hence the suit has to be dismissed.

The trial Court on the above pleadings framed the necessary issues, tried both the suits and rendered a common judgment granting the relief of

delivery of possession as asked for. Aggrieved over the same, the respondent/defendant preferred two appeals in A.S.Nos. 82 and 83 of 1987 on

the file of the Additional District Judge, who allowed the appeals setting aside the judgment of the trial Court and dismissed both the suits. The

aggrieved plaintiffs have preferred these two second appeals therefrom. At the time of admission the following substantial questions of law were

formulated for consideration:

(1) In the light of the materials on record taken along with the uncontroverted facts, whether the finding of the lower appellate Court that Section

30 of the Tamil Nadu Buildings (Lease and Rent Control) Act would not apply to the building is sustainable in law?

(2) Having regard to the facts and circumstances and in particular to Ex.A-2 and the admission of the respondent which would establish that there

had been a demolition and reconstruction, whether Section 30 of the Tamil Nadu Buildings (Lease and Rent Control) Act could be said to be

applicable for the reasons mentioned in the judgment of the lower appellate Court?

(3) On the basis of this evidence and findings which disclose the fact that there was a demolition and reconstruction of a new building, and the

induction of the respondent as a tenant in the new building, whether the judgment of the lower appellate Court to the effect that Section 30 of the

Tamil Nadu Buildings (Lease and Rent Control) Act would not apply, as the respondent appears to have been inducted even before the

completion of the construction of the new building is sustainable in law?

The appellants herein have preferred these two appeals from the judgment of the lower appellate Court reversing the judgment of the trial Court,

made in the said two suits filed by the appellants herein seeking delivery of possession of the plaints schedule mentioned properties from the

respondent. The learned Senior Counsel appearing for the appellant in both the appeals would submit that the respondent/defendant actually

vacated from the suits mentioned premises in December, 1981 and handed over vacant possession of both the shops in question to the appellants

and after taking possession, the appellants demolished the entire portion and put up a new construction and the respondent was inducted as a

tenant in both the shops only in June, 1982; that in view of the same, the lower appellate Court should have held that Section 30 of the Tamil Nadu

Buildings (Lease and Rent Control) Act would apply to this case; that after the reply notice under Ex.B-3, the respondent agreed to vacate the

premises in question under Ex.A-2; that as per the agreement, the defendant had also vacated and kept all his articles in the rice mill belonging to

the plaintiffs; that in the light of the admission made by the respondent under Ex.A-2 which was also fortified by the oral and documentary evidence

adduced on behalf of the appellants, there was no scope to hold that Section 30 would not apply to the case; that in the light of the uncontroverted

documents filed by the appellants it was clear that the appellants had demolished both the shops and had put up new building thereon; that Section

30 of the Act would apply to the buildings in question; that the reasonings given by the lower appellate Court for giving a finding that Section 30 of

the said Act would not apply was contrary to the evidence on record, besides being contrary to law; that Ex.A-2 which was relied upon by the

lower appellate Court would by itself establish the fact that the building had been demolished and the respondent was put in possession of the new

buildings only; that the first appellate Court was error in finding that the respondent had been put in possession even before the completion of the

new building and therefore Section 30 of the Act would have no application; that the evidence of P.W.1 and the documents filed by the appellants''

side were neither inconsistent nor in any manner against the case pleaded by the appellants; that though a new building was completed on 1.6.1982

and the respondent was put in possession of the building on the said date, notice to the municipality has been given in March, 1983 and those facts

could not be construed to mean that the respondent was put in possession even before the completion of the building and that the buildings do not

qualify for exemption u/s 30 of the said Act; that the lower appellate Court should have seen that in any event, even assuming without admitting that

the respondent was put in possession of the new building even before completion of the building, nevertheless the provisions contained in Section

30 would apply to the said building and thus the lower appellate Court without proper perspective of the evidence adduced has set aside the well

considered judgment of the trial Court and the judgment of the trial Court has got to be restored and the suits are to be decreed as prayed for and

delivery of possession has to be ordered.

Vehemently opposing every one of the contentions of the appellant''s side, the learned Counsel for the respondent would submit that both the

suits filed by the appellants were not maintainable since the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act were applicable

to the properties in question; that it is an admitted position that the respondent continued his business in door Nos. 235 and 236 belonging to the

appellants for more than 25 years and thus the tenancy has continued all along; that there was no new construction as alleged by the appellants and

hence the suit building was not exempted from the purview of the House Rent Control Act 18 of 1960; that it is pertinent to note that the

respondent continued to be a tenant of the suit premises and has been carrying on his business, but he had not vacated the same at any point of

time that in order to prove the continuity of tenancy, and possession by the respondent, he filed number of documents before the trial Court; that

though the trial Court failed to consider and appreciate the same, the first appellate Court on proper scrutiny and appreciation has accepted the

evidence and has rightly dismissed the suits; that it is pertinent to note that the appellants have not stated anywhere in the plaint as to when the

respondent was inducted to the suit property, after the construction of the new building or when the construction of the new building was over; that

even as per the recitals of Ex.A-2, relied on by the appellants, the respondent was entitled to be in possession of the said premises as a tenant; that

at the time when the suit was taken up for trial, even as per the case of the appellants, the building was not exempted from the purview of Act 18

of 1960; that the respondent never vacated and kept his articles in the rice mill belonging to the appellants as contended by them; that it is pertinent

to point out that the respondent was put in possession even before the alleged completion of the new building and hence the lower appellate Court

was perfectly correct in holding that Section 30 of the said Act has no application to the present facts of the case; that since the respondent was

put in possession of the new building even before its completion, the provisions contained in Section 30 of the said Act cannot be applied to the

suit building; that it is pertinent to note that the respondent has been paying the monthly rental as agreed between the parties continuously and even

after the construction of the new building, which would clearly indicate the conduct of the appellants in receiving the rental with an intention to

continue the respondent as a tenant, even after the construction of the new building and under the stated circumstances, the provisions of the Tamil

Nadu Buildings (Lease and Rent Control) Act is not applicable to the building in question and hence the first appellate Court was perfectly correct

in dismissing the suits and hence it has got to be sustained.

The appellants herein admittedly the owners of the suit premises bearing door Nos. 235 and 236, Gandhi Market Road, Arni Town filed the

suits for recovery of possession of the suit property from the respondent herein, who has been a tenant for a long time, doing his business under an

agreement of tenancy and paying the rents to the appellants herein. Though the building in question is situated within the Vellore Municipal limit,

instead of filing eviction petitions under the relevant provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960, the appellants filed

the said Civil action for recovery of possession stating that the building in question bearing door Nos. 235 and 236 was a new one; that the old

building was completely demolished and a new building was constructed, completed and informed to the local body in March,, 1983 and the first

assessment was made only in April, 1983 and thus the building was exempted from the purview of the Rent Control legislation and after

determining the lease tenancy by a due notice as contemplated in law. The only defence that was putforth by the respondent herein was that he had

been a tenant for the past 25 years; that he did not vacate the building at any point of time; that the tenancy has continued without any break and

the re-occupation of the vacated portion of the godown after the erection of the superstructure would not amount to lease of a new building and

hence the appellants could not avail the exemption clause u/s 30 of the Tamil Nadu Buildings (Lease and Rent Control) Act and hence the suits

were to be dismissed as not maintainable.

At the outset it has to be stated that both the suits were filed by the appellants after determining the tenancy by issuing notice u/s 106 of the

Transfer of Property Act. Though it was pleaded by the respondent in his written statement that the said notices were not valid, both the Courts

have found that the notices were valid and in accordance with law and nothing is canvassed by the respondents side in this Court, so far as those

notices are concerned.

As seen above, the only question that would arise for consideration is whether the appellants could avail the exemption u/s 30 of the Tamil

Nadu Buildings (Lease and Rent Control) Act to file the suits instead of initiating rent control proceedings. It is the specific case of the appellants

that the construction of the building in question was completed and informed to the local body in March,, 1983 and thus it is a new building and

hence the building is exempted from the purview of the Rent Control legislation. It is not in dispute that the respondent became a tenant under the

appellants in respect of the two shops comprised in the old building long before. From the available oral and documentary evidence, it could be

well seen that the respondent was occupying the two shops in the old buildings and when there was a proposal to demolish and reconstruct a new

building by the appellants, an agreement was entered into between the parties on 23.11.1981 under Ex.A-2, whereby the respondent agreed to

vacate both the shops situated in door Nos. 235 and 236 and hand over possession on 30.11.1981. A revised plan in respect of the new

construction was approved by the Vellore Municipality on 26.2.1982 which is marked as Ex.A-3. It is an admitted position that the whole building

bearing door Nos. 235 and 236 which was previously existing was thoroughly demolished and a new construction has come into existence. It

could not have been possible either to demolish the existing old building or to reconstruct a new building in that site without the possession being

vacated by the respondent and surrendered to the appellants herein. Taking into consideration Ex.A-2 agreement and Ex.A-3 approved plan, it

would be abundantly clear that the respondent should have vacated and surrendered possession as found under Ex.A-2 agreement and a new

construction as found under Ex.A-3 should have been made.

The contention of the appellants'' side that the property tax assessment for the new building was made from April, 1983 is not disputed by the

respondent. Fresh assessment in respect of the new building should have been made only on the construction being notified to the municipality. The

contention of the respondent that he did not vacate the entire building, but he vacated only a portion of the same and he was continuing his business

at one part while the construction of the new building was going on the other part cannot be countenanced in view of the admitted position that a

new building has come into existence in the place of the old building. The learned Counsel for the respondent brought to the notice of the Court

that the respondent was put in possession of the building on 1.6.1982 itself even before the completion of the building in March, 1983 and thus it

would be clear that the respondent has been continuing to be a tenant even before the completion of the building and hence the exemption u/s 30 of

the Tamil Nadu Buildings (Lease and Rent Control) Act is not applicable to the present facts of the case. Even assuming that the respondent was

put in possession of the building in June, 1982 i. e. even prior to the completion of the new building, it would not in any way change the character

of the building. The learned Counsel for the respondent would vigorously contend that the tenancy of the respondent was without any interruption

and he has been paying the rent all along. This contention cannot be accepted in view of the documentary evidence produced by the respondent''s

side. Ex.B.4 is the rental receipt dated 7.9.1981 and Ex.B.5 is another rental receipt issued on 5.7.1982. The respondent has not filed any rental

receipt for the period from September, 1981 to June, 1982. Taking into consideration Ex.A-2 agreement dated 23.11.1981 entered into between

the parties wherein the respondent agreed to surrender possession on or before 30.11.1981 and the non payment of rental for the period from

September, 1981 to June, 1982 and the fact that the respondent was put in possession of the building on 1.6.1982, it cannot be stated that either

the tenancy was continuous or it remained uninterrupted. The respondent is unable to give any Explanation why there was no payment of rental for

the period from September, 1981 to June, 1982. In view of all the above, it can be Well stated that as per the agreement under Ex.A-2, the

respondent has surrendered possession of the premises to the appellants enabling them to demolish and construct a new building. Only after the

completion of the new building, the respondent commenced payment of rental from July, 1982. No doubt this would would be clearly pointing to

the surrender of possession of the old building by the respondent and entering into a new tenancy agreement in respect of the newly constructed

building. Section 30 of the Tamil Nadu Buildings (Lease and Rent Control) Act, speaking of the exemption in case of certain buildings reads as

follows:

Section 30: Exemption in the case of certain buildings:

Nothing contained in this Act shall apply to-(i) any building for a period of five years from the date on which the construction is completed and

notified to the local authority concerned.

From the available evidence it would be very clear that the old building was demolished and a new building has come into existence only in March,

1983 and has been newly assessed to property tax. Both the suits were filed by the respondent in the year 1987 i.e. within 5 years from the

completion of the construction and notification to the municipal authority concerned. It has to be borne in mind that this provision availing

exemption to new buildings was mainly intended to give the landlords the rights which as owners of the buildings they had under the ordinary law

viz. to give them on lease of rents which they thought what was remunerative and to evict the tenants during that period without any fetters imposed

by the Act the Court is of the view that the case reported in Abdul Azeez & Sons v. Mavalirajan (1977)1 T.L.N.J. 69 squarely applies to the

present facts of the case. It has been held in that decision as follows:

Tamil Nadu Buildings (Lease and Rent Control) Act 1960. Section 2, 30(i) Building-Removal of roofing keeping the walls intact - Fresh

construction - New Building has come into existence - applicability of Section 30 - Jurisdiction of Civil Court.

In J.S. Irani v. T.S.P.L.P.Chidambaram Chettiar (1952)2 M.L.J. 221 : AIR 1953 Mad. 650. This Court had occasion to consider the definition of

the term.'' building'' occurring in the earlier Act, namely, 1946 Act. Admittedly there is no material difference between that definition and the

definition in the present Act. According to the learned Judge, a ''building'' as defined in the Act must be one which is intended for human habitation

or for using it for non-residential purposes such as carrying on a business. In this particular case, after the appellant surrendered possession of the

two halls, the tiled roofing was removed. Once the tiled roofing was removed, admittedly what stood were only the walls. The question for

consideration is, whether those walls could be said to constitute ''building''. Those walls standing alone would not have constituted a building for

human habitation/or for non-residential purposes such as carrying on business. Therefore they could not have constituted a ''building'' as defined in

the Act. As soon as the pillars were erected and the height of the walls was raised and asbestos roofing was put up, a building as defined in the Act

came into existence and since that building came into existence only in 1966, that would attract the provisions of Section 30(i). If it so attracts, it

will be outside the jurisdiction of the Act and consequently the Civil Court has jurisdiction to pass a decree for eviction in the present case.

Thus for the discussions made and reasons stated above, the Court is of the considered view that the suit is filed by the appellants are very well

maintainable and thus the finding of the lower appellate Court that Section 30 of the Tamil Nadu Buildings (lease and Rent Control) Act would not

apply to the building cannot be sustained. All the substantial question of law formulated are answered in favour of the appellants.

In the result, both the second appeals are allowed with costs, setting aside the judgment and decree of the first appellate Court and restoring

the judgment and decree of the trial Court. Both the suits are decreed as prayed for.