M.C. Thangavelan vs T.S. Sivarama Rao

S. Sardar Zackria Hussain, J.—The tenant is the revision petitioner. The revision is directed against the eviction ordered by the Rent Control

Appellate Authority after remand of the matter by this Court in C.R.P.219 of 1988 dated 27.7.1994 in respect of the petition mentioned non

residential premises bearing old D.No.85-A, new D.No.129 at Saint Theresa Street, Pondicherry. The land lord filed rent control petition u/s

14(1)(b) of the Pondicherry (Buildings Lease and Rent Control) Act, (hereinafter referred to as ''the Act'') for demolition and reconstruction of the

premises. It is stated in the petition that the premises is very old and in a dilapidated condition, necessary approvals have been obtained from the

Town Planning Authorities and the land lord is having ready cash and the premises is also required for personal occupation by the land lord for non

residential purpose after new construction.

2.The petition was resisted by the tenant on the ground that the requirement is without bona fide.

3.The Rent Controller considering the evidence and exhibits marked on either side dismissed the rent control petition as per order dated

22.4.1986 finding that the requirement of the petition premises by the landlord is without bona fide and not within the meaning of Section 14(1)(b)

of the Act. The order was challenged before the Rent Control Appellate Authority in M.A.No.68 of 1986 and the appeal was allowed. The tenant

challenged the said judgment before this court in C.R.P.No.219 of 1988 in which this court remitted the matter back to the Rent Control Appellate

Authority as per the order dated 28.7.1994 for re-consideration in the light of the principles laid down by the Supreme Court in the decision

reported in ""M/s P.Orr & Sons (P) Ltd., .vs. Associated Publishers (Madras) Ltd. 1990 II MLJ 12 and affording opportunity to both parties to let

in further evidence. After remand of the matter, before the Rent Control Appellate Authority, the landlord P.W.1 examined himself and further

marked Exs.P.9 and P.10. The tenant further examined the Engineer as R.W.2 on his side besides the Advocate-Commissioner as C.W.1 and

Exs.C1 to C10 were also marked. The Rent Control Appellate Authority considering such evidence already on record and further evidence

adduced, ultimately found that the requirement of the landlord is bona fide and in that view allowing the appeal and ordered eviction. The judgment

is under challenge in this revision petition.

4.The learned counsel for the tenant- revision petitioner referring the evidence of the Engineer R.W.2 and his report, wherein he stated that the age

of the petition premises is about 60 years, submitted that according to R.W.2, the building was safe enough to continue for another 10 years and as

such, the building being in sound condition the requirement cannot be said to be bona fide. Learned counsel for the revision petitioner relied on the

following decisions in support of his contentions.

i) In Vijay Singh etc. etc. Vs. Vijayalakshmi Ammal, of the decision, the Supreme Court has held as follows:-

Permission u/s 14(1)(b) cannot be granted by the Rent Controller on mere asking of the landlord, that he proposes to immediately demolish the

building in question to erect a new building. At the same time it is difficult to accept the stand that the building must be dilapidated and dangerous,

unfit for human habitation. For granting permission u/s 14(1)(b) the Rent Controller is expected to consider all relevant materials for recording a

finding whether the requirement of the landlord for demolition of the building and erection of a new building on the same site is bona fide or not.

For recording a finding that requirement for demolition was bona fide, the Rent Controller has to take into account: (1) bona fide intention of the

landlord far from the sole object only to get rid of the tenants; (2) the age and condition of the building; (3) the financial position of the landlord to

demolish and erect a new building according to the statutory requirements of the Act. These are some of the illustrative factors which have to be

taken into consideration before an order is passed u/s 14(1)(b). No court can fix any limit in respect of the age and condition of the building. That

factor has to be taken into consideration along with other factors and then a conclusion one way or the other has to be arrived at by the Rent

Controller"".

ii) In Amaiyappa Transport Vs. N.S. Rajulu, , the Supreme has held as follows:-

To make out a case u/s 14(1)(b) of the Act, the landlord has to satisfy the Controller that the building is bona fide required by the landlord for the

immediate purpose of demolishing it and the purpose of such demolition is to erect a new building on the site of the building sought to be

demolished. On being so satisfied, the Controller shall direct the tenant to deliver possession of the building to the landlord before a specific date"".

Having regard to the factors to be kept in mind for recording a finding regarding bona fide requirement for demolition as pointed out by

Constitution Bench of Supreme Court in Vijay Singh etc. etc. Vs. Vijayalakshmi Ammal, , as also facts of the instant case, held, requirement of the

building for demolition and construction of a marriage hall was bona fide"".

Iii) In Shakeelulr Rahman Vs. Syed Mehdi Ispahani, , the Supreme Court has held as follows:-

The view taken by the Court in P.Orr & Sons case that the landlord could succeed in an application u/s 14(1)(b) only when it is established that

the building is in a dilapidated condition which requires immediate demolition was diluted by a subsequent Constitution Bench decision in Vijay

Singh case. In the latter case it was observed: ""it is difficult to accept the stand of the appellants that the building must be dilapidated and

dangerous, unfit for human habitation. ... For recording a finding that requirement for demolition was bona fide, the Rent Controller has to take into

account: (1) bona fide intention of the landlord far from the sole object only to get rid of the tenants; (2) the age and condition of the building; (3)

the financial position of the landlord to demolish and erect a new building according to the statutory requirements of the Act. These are some of the

illustrative factors which have to be taken into consideration before an order is passed u/s 14(1)(b)"".

5.Learned counsel for the respondent-landlord argued that correct and proper finding have been recorded by the Rent Control Appellate

Authority with regard to the age and condition of the building and as to the financial capacity of the landlord to put up a new construction after

demolishing the existing petition building and that the requirement for demolition and re-construction is bona fide.

Learned counsel by referring the report of the Advocate-Commissioner , who was appointed at the appellate stage after remand of the matter by

this court, has pointed out that there are superficial cracks both on the walls and in the roof as stated by R.W.2 and if not they are attended

properly then it may not be safe to occupy the building.

6.In the petition premises occupied by the revision petitioner, the petitioner is running a bar. The advocate-commissioner filed the interim report

Ex.C1 stating that when he noted down the crack in the southern wall of the brick built structure existing in the first floor and some cracks in the

floor of the first floor and got them photographed, a request was made by the counsel for the tenant to confine the scope of the work to the

features relating to the alterations, constructions recently made to the walls and floors of the building and also to note the features of new

construction put up on the roof of the first floor and refrain from noting down the physical features pertaining to the general condition of the

building. Therefore, the Advocate-Commissioner sought further instructions. The interim report was marked as Ex.C1 on 3.12.1996. The

Advocate Commissioner inspected the premises as early as on 26.3.1996 at 4.30 P.M. The notes of inspection made by the Advocate-

Commissioner at the time of his visit on 26.3.1996 in respect of the petition premises is marked as Ex.C.6. In Ex.C6 it is stated as follows:-

1.At the first floor there are three brick pillars without plastering facing St.Theresa Street and done brick pillar on the extreme west plastered. The

pillars on the extreme east and west are whitewashed with green colour while the two middle pillars are whitewashed with white colour.

2.At the centre portion of first floor there are four solid cement pillars two of which on the extreme east and extreme west are whitewashed with

green colour while the two middle pillars are white washed with white colour.

3.The eastern wall and the western wall are both white washed with green colour.

4.The entire white washing appears to have been recently done.

5.At the first floor one fourth thereof approximately is found to be covered with a brick built structure of the southern end. A portion of the brick

built structure on the western side is covered by Madras terrace built with wooden rafters while the remaining built structure is covered by

Asbestors making use of wooden rafters. The rest of the first floor is found to have been covered by""Lite Roof"".

4.There is a crack in the southern wall of the room covered by Asbestors sheet.

5.There are broken wooden and plastic chairs, broken wooden tables, small pieces of bamboo poles and used tyres found dumped in the rooms

covered by Asbestors roof and Madras terraced roof.

6.There are cracks in the floor of the first floor"".

7.The Advocate-Commissioner was also examined as C.W.1 before the Rent Control Appellate Authority. The petition premises is situate at Saint

Theresa Street, Pondicherry. The Advocate Commissioner C.W.1 has stated that he found alterations and constructions recently made to the walls

and floors of the building and some of the cracks were repaired by the recent construction and such cracks were found in the southern wall of the

brick built structure existing in the first floor and some cracks in the floor of the first floor. R.W.2 the Engineer examined on the side of the tenant

before the Rent Control Appellate Authority after remand by this court has stated that the building was constructed 60 years ago. P.W.1 the land

lord, who was examined after remand has stated that there have been cracks across the roof on horizontal in ten or 15 places and there have been

sagging of water leading to development of cracks vertically in all the rooms. Therefore, it is clear from the evidence of P.W.1, the Engineer R.W.2

and the Advocate Commissioner C.W.1, who examined after remand that the building is more than 60 years old and is not in a sound condition, in

that there have been cracks in the southern wall of the brick built structure in the first floor and some cracks in the floor of the first floor and also

cracks on the roof which would lead to leakage or seepage of water resulting to stagnation of water in all floors. The Advocate Commissioner also

found at the time of his visit that the premises was white washed at the time of his visit which could have been done before his visit. The Advocate

Commissioner has found 1/4th of the first floor covered with brick built structure at the southern end and a portion of the brick built structure on

the western side is covered by Madras terrace built with wooden rafters while the remaining built structure is covered by Asbestos making use of

wooden rafters and the rest of the first floor is covered by lite roof and the Commissioner also found that the crack in the southern wall of the room

is covered by asbestos sheet and that there have been cracks in the floor of the first floor. Therefore, it is clear from such report of the Advocate

Commissioner that the petition premises which is more than 60 years old is in dilapidated condition. The landlord also owns an adjacent building

Door No.85 in which it appears he is doing business. As such, according to him, the petition premises which is old and in dilapidated condition is

required for demolition and reconstruction by annexing the adjacent premises bearing Door No.85 owned and occupied by him in which he is

carrying on a cycle company. Therefore, as rightly found by the Rent Control Appellate Authority that the requirement is bona fide. The landlord

has obtained necessary plan and permission, which have been marked as Exs.P.1 and P.2. As regards the financial conditions of the landlord, the

landlord as per the account in Karnataka Bank has got the sum of Rs.47,760.85 and he invested Rs.30,000/- in fixed deposit in the State Bank of

India as seen from Ex.P.4. In fact it is admitted by R.W.1 that the landlord is running an agency business. He has also admitted in chief examination

that the landlord is in his own house and that he has got five shops in Anna Salai besides he also owns four houses in Chinna Subbaraya Pillai street

and two houses at Anna Salai and that he has let out the same. He is also having sites. The landlord P.W.1 also states in his evidence that in the

properties shown as A schedule in the settlement Ex.R.1, he is carrying on four business and in which one business is carried on in the name of his

wife and he got to his share a house bearing D.No.60, Subbaraya Pillai Street, a house bearing D.No.14 in Bazaar Saint Luran, petition premises

and a shop bearing D.No.102 Ambalathadayar street and also a house in Anna salai. Therefore, it is clear that the landlord is in an affluent position

so as to demolish the petition premises and put up reconstruction. The Rent Control Appellate Authority taking all these factors into consideration

rightly found that the petition premises,which is more than 60 years old is in a dilapidated condition, and as such, the requirement by the landlord is

bona fide. The landlord obtained the necessary sanctioned plan and permission and that the land lord also got sufficient means to demolish and put

up new constructions. The said finding of facts cannot be interfered with in this revision and has to be confirmed.

8.The Civil Revision Petition fails and is dismissed. Six months time is granted to the revision petitioner to vacate the petition mentioned premises

on the revision petitioner filing an undertaking affidavit within two weeks that he would hand over possession to the land lord without resorting to

execution proceedings. No costs.