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Judgment
S.S. Subramani, J.—C.R.P. No. 1386 of 1993 is by the tenant and C.R.P. No. 3181 of 1993 is by the landlord. They arise from the same
proceedings in R.C.O.P. No. 21 of 1986, on the file of Rent Controller (Principal District Munsif), Dindigul.
Parties herein will be referred to according to their array in the rent control proceedings.
Landlord sought eviction of the tenant on the ground that he has committed wilful default in payment of rent and the building also requires
immedi-ate demolition and reconstruction.
Both the grounds were opposed by the tenant.
Rent Controller recorded evidence, both oral and documentary, and, after considering them in detail, he ordered eviction.
The matter was taken in appeal by the tenant in R.C.A. No. 31 of 1990 on the file of Principal Subor-dinate Judge, (Appellate Authority),
Dindigul. The Appellate Authority confirmed the order of eviction in so far as the finding that the building requires im-mediate demolition and
reconstruction is concerned. But it was found that he is not liable to be evicted on the ground of wilful default in payment of rent. That is how two
revision petitions are filed, one by the landlord and the other by the tenant.
At the time of arguments, learned Counsel for the landlord submitted that he is not pressing his revision, namely, C.R.P. No. 3181 of 1993.
Therefore, the same is dismissed.
The point that survives for consideration is, whether the finding of the authorities below that the building requires demolition and reconstruction
requires interference by this Court.
Learned Counsel for the petitioner submitted that u/s 14(1)(b) of the Rent Control Act, the condition of the building is of primary importance,
and in this case, even according to the Commissioner''s Report, it is clear that the building is not in such condition that it requires reconstruction.
The Commissioner inspected the property with the help of an En-gineer. According to learned Counsel, even though the building is old, and may
not have any modern amenities, it is structurally sound. He further contended that so far as the means of the landlord is con-cerned, no evidence
has been let in. It is his further case that the claim of the landlord is also lacking in good faith. That argument is based on the premise that it is at the
instance of P.W. 2, the eviction petition itself is filed. According to him, he being a tenant, offered sufficient funds to the landlord to have the
construction or that he was prepared to take up the construction work. But, without accepting that offer, landlords have accepted the offer of
P.W. 2. This, according to the learned Counsel, is only to provide P.W. 2 accommodation after reconstruction. It is fur-ther contended that if
P.W. 2 is a man who has to fi-nance the reconstruction, it shows that landlord has no means to put up the construction. Both the Authorities below
concurrently found against the above contention and held that it has ho basis. It further found that the claim of the landlord is bona fide.
Learned Counsel also submitted that some of the decisions relied on by the Authorities below were declared to be not good law by the
Supreme Court and, therefore, the basis of the finding also goes.
I will consider these submissions in seriatim.
The Commissioner who prepared a report with the help of an Engineer, has given a vivid picture of the building. Of course, he does not give a
certificate that the building is dilapidated, but it is seen that the building is more than 50 years old having no modern amenities. The entire flooring is
damage and some of the walls have also cracks. Even some portions of the roof and rafters are damaged according to the Commissioner. The
argument of learned Counsel is that these shortcomings in the building are but natu-ral taking into consideration the age. But the same do not affect
the structural strength of the building which, according to him, is one of the main criteria to be considered. What is meant by condition of the
building for the purpose of reconstruction? In a recent decision of the Supreme Court reported in Vijay Singh etc. etc. Vs. Vijayalakshmi Ammal, ,
their Lordships held that ''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 why or the other has to be arrival at by the Rent
Controller''. In the concluding paragraph of the judgment, their Lord-ships took into consideration the importance of the locality, the development
that has taken place, the modern amenities that could be provided if a new construction is put up. This also suggests that the development in the
locality and the amenities that are presently available are all to be taken into consideration to arrive at a conclusion regarding the ''condition'' of the
building. Along with the same, the economic advantage of the landlord if a new building is put up with modern amenities, is also relevant
consideration.
When we say that the area is developing, natu-rally, the Court has to consider the surrounding places where the building is situated, It is settled
law that while we take into consideration the condition of the building that requires reconstruction, the same has to be considered not from a
narrow point of view, namely, whether the building is in a dangerous or dilapidated condition. The primary importance that was given to physical
condition of the building has now been watered down to a certain extent in the decision of the Supreme Court cited supra. The Court must have
due regard to the importance of the locality in which the building is situated, the developing nature of the locality and also the development of the
area where the particular building itself is situated.
In one of the earliest decisions of the Kerala High Court reported in Kalliani and Ors. v. Madhavi and Ors. 1970 K.U.T. 257, in paragraph 3,
V.R. Krishna Iyer,J., as he then was, held thus:
... if a building perilously close to sinking alone can justify a petition u/s 11(4)(iv) in a State with heavy monsoons, I do not know what purpose
would be served by such a course except to endanger the lives of tenants. It is obvious, therefore, that a wider and more realistic meaning must be
given to the expression ""condition of the building"". The social purpose of this provision is to remove the read blocks in the way of progress in
building programmes. Old structures in newly developing areas may be like pimples on fair faces. Replacement and renewal of obsolescent and
unsightly buildings to make room for larger, modern constructions is a social necessity, provided ""existing tenants are not thrown into the streets.
The ""condition of the building"" is a larger concept which includes considerations of social surroundings and allied factors, Where the building is very
old and incongruous with the social setting and surroundings of the place, the Court has got to take a more liberal view in applying the provision of
law....
In the decision reported in Sherwood Educational Society v. Abid Namazie (1997) 1 L.W. 323, I have also applied the above decision.
In Saramma Varghese v. George 1971 K.L.T. 282, a learned Judge of the Kerala High Court said that ''If the physical condition of the
building alone is taken into consideration it might be said that it does not call for immediate reconstruction. But other factors like the situation of the
building, the possibility of its being put to more profitable use after reconstruction, etc. have also to be taken into consideration. All that the courts
should see in a matter like this is whether the claim put forward is honest and the petitioner him-self is earnest in carrying out the reconstruction.
In Ahammad Kanna v. Muhammed Haneef 1967 K.L.T. 841 K.K. Mathew, J. (as he then was) has held thus:
A conclusion on the question as to whether a building is in such a condition that it needs reconstruction, is to be arrived at, not merely on the basis
of looking at the building alone or taking into account the actual physical condition of the building alone but having due regard to various other
circumstances, namely, the area where the building is situated, the nature of the devel-opments that are taking place in the area, etc. To reach this
conclusion obviously the Court 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 it being put to a more prof-itable use after
construction, the means of the landlord and so on....
[Italics supplied]
The recent decision of the Supreme Court has also applied the same principle. When we consider the development of the locality and
importance of the same, the coming up of modern buildings and also the amenities, etc. should also be taken into consideration. If this is the
interpretation that has to be given for the expression ''condition of the building'', as held by the Supreme Court, ''physical condition'' of the building
is only one of the requirements that has to be taken into account u/s 14(1)(b) of the Act along with other factors.
In the case on hand, the finding of the Rent Controller as well as the Appellate Authority is that the building is situated in the heart of the town.
Modern buildings have come up, and that too in front of the Court-house, various modern buildings have also been constructed, and the locality is
very important. Many public offices are also situated in the same junction. It has also come out in evidence that the existing building is without any
modern amenities. Merely because the structure is strong, if there are no amenities, it cannot be said that it could be used conveniently. When we
take into consideration the condition of the building, making use of the building to its best ad-vantage is also a matter that could be taken into
consideration. It is in evidence that the flooring is dam-aged, and the mud portion has come up. Kitchen portion could not be made clean due to
lack of amenities. Even now firewood is used for preparing food. That means, the entire area has become dark due to smoke. According to the
Commissioner, the condition of the rafters is also not good. Portions of the roof have also lowered down due to bad structure.
Even if the building may not be that much dan-gerous as urged by learned Counsel for the petitioner, that is not the way that we have to
interpret the condition of the building. It has got a larger concept, and we have to take into consideration the social set up, and the Court is also
entitled to look into the aspect whether the existing building is fit to be there, taking into consideration the development that has taken place in the
locality. If, in that view, the Commissioner''s Report is interpreted in this case, I do not think, the Authorities below have wrong in holding that the
building requires reconstruction.
Regarding the means of the landlord, it is true, P.W. 2 has also offered financial assistance. Landlord in this case is an association of the
Advocates'' Clerks of Dindigul. They have made various arrangements to raise necessary funds, and both the Authorities below have come to the
conclusion that they have got the capacity to raise funds. They are not expected to produce the entire money before Court, to show their means.
Will the landlord be in a position to Complete the proposed construction is the only question that has to be considered. That finding can only be in
favour of the respondent, as found by the authorities below. Learned Counsel for the petitioner submitted that the claim is not bona fide and the
attempt of the landlord is only to see that the tenant is evicted. I do not think such contention could also be accepted. From the very beginning, the
respondent was in search of a building for their own, so that all the advocate clerks can be together in one building of their own, and that too close
to the Court-house. In that view, they purchased the property and wanted to put up the construction. Lack of bona fide was argued for the reason
that when financial assistance was offered by the petitioner, the same was not accepted, but the offer made by P.W. 2 was taken into
consideration by the landlord. The argument seems to be that if the offer of the petitioner is accepted, the claim will be bona fide, and otherwise it
will not be. I do not think such an argument could be put forward by the petitioner. By admitting that he is prepared to provide financial assistance
for the purpose of construction, it means that he is also satisfied that the building re-quires demolition and reconstruction. He also wants more
modern amenities to be provided and he also wants to occupy a modern building. This is an implied admission by the tenant himself. The effect of
that admission cannot be taken away merely because the landlord accepts the financial assistance from other persons. If a person is able to give
financial assistance, it follows that he may also take into consideration the repaying capacity of the debtor. The means and bona fides are,
therefore, proved.
In the result, I do not find any merit in this revision. Confirming the findings of the authorities below, the civil revision petition is dismissed,
however, without any order as to costs. C.M.P. No. 6743 of 1993 for stay is dismissed.
At the fag end of the arguments, learned Counsel pleaded that in case the order of eviction is confirmed, his client may be given some time to
vacate the premises. In this case, the litigation started in the year 1986, and now it is more than ten years. The cost of construction has also
increased manifold. At the same time,''the income which the landlord gets is meager. After the litigation began, nobody will be interested in
maintaining the building. Naturally, the condition of the building must also have deteriorated further. Therefore, any further delay in asking the tenant
to vacate the building will put the landlord to greater hardship. In the circumstances of the case, I do not think the tenant should be given any time
to vacate the premises. The request made by learned Counsel for the petitioner (tenant) is, therefore, rejected.