S. Rajendran vs G.R. Rajan

S. Palanivelu, J.—The petitioner is the landlord. He filed R.C.O.P.No.151 of 1998, on the file of the learned Rent Controller, Madurai

Town, for eviction of respondent, who is the tenant, from the demised premises for the purpose of demolition and reconstruction u/s 14 (1) (b) of

the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. The building belongs to the petitioner. In the petition for eviction, he has alleged

that the respondent/tenant is running a tailoring shop in the demised premises which was taken by him on lease for Rs.300/- as rent per month. The

building is situated in a locality where the area is fast developing. As the existing building is old fashioned and not so strong to put up further

construction, this Petitioner intends to pull down the same and put up a pucca building with all modern amenities for his convenient residence and

also to construct commercial complex in the remaining portion. He has submitted the necessary building plan for approval to the Madurai City

Municipal Corporation. He has got sufficient funds to demolish the building and to construct a new building. He has made all arrangements in this

respect. On 08.05.1998, he sent a notice to the respondent to vacate and surrender the building. However, he did not send any reply. Hence, the

petition may be allowed.

In the counter filed by the respondent/tenant, it is alleged that it is incorrect to state that the building is old fashioned and that the area in which

the building is situated is fast developing and that building has to be pulled down to put up a new building for his convenient residence and also to

make a commercial complex. The building is a new one which is in good and strong condition and it wears a new look. The requirement of the

petitioner is not at all bona fide one, but invented for the purpose of evicting the tenant. Hence, the petition has to be dismissed.

The learned Rent Controller allowed the application ordering eviction of the tenant within a period of two months. Hence, he carried the matter

in appeal in R.C.A. No.55 of 2006, on the file of the Principal Subordinate Court, Madurai. The Rent Control Appellate Authority allowed the

appeal, by setting aside the order of eviction by observing that the requirement of the landlord is not bona fide. Hence, the landlord is before this

Court with this Civil Revision Petition.

The learned counsel for the petitioner Mr. R.A. Mohanram would strenuously contend that the pleadings made by this petitioner, the documents

produced by him and also oral testimonies adduced on his behalf, would amply show that he bona fide requires the building for demolition and re-

construction and the converse findings of the Rent Control Appellate Authority are not sustainable. He further submits that even though the landlord

produced a copy of the plan which remained unapproved at the time of the enquiry in the eviction application, after the R.C.A. was over, he got

the plan approved and that he has also increased the deposit of Rs.4,00,000/- to Rs.5,00,000/- for the purpose of demolition and re-construction.

On the contrary, the learned counsel for the respondent/tenant Mr. R. Subramanian would submit that the landlord has miserably failed to

establish that he bona fide requires the buildings for the purpose of demolition and re-construction, that he did not produce the approved plan

before the Rent Controller, that he had not shown sufficient means for demolition and reconstruction and that the observations made by the Rent

Control Appellate Authority need not be disturbed.

Before entering into discussion in this case, it is incumbent upon this Court to refer and follow the dictum laid down by the Constitution Bench of

the Hon''ble Supreme Court in a decision in Vijay Singh etc. etc. Vs. Vijayalakshmi Ammal, wherein Their Lordships, after referring to various

judgments of the Court, formulated the following principles before making observation in favour of the landlord which are as follows:

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 errect a new building according to the statutory requirement of the Act. These are some of the illustrative factors which have to be

taken into consideration before an order is passed under 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.

As far as the first condition is concerned, there should not be any intention on the part of the landlord to evict the tenants from the building

owned by him by projecting a false claim before the Court, secondly, the age and condition of the building has to be assessed by the Court and

thirdly, the landlord has to establish his financial position for demolition and reconstruction.

As far as the age and condition of the building are concerned, it is stated in the eviction petition that the building is 30 years old and in the

counter it has been denied. No petition for appointment of an Advocate Commissioner has been taken out before the Rent Controller to note

down the condition of the building. In this regard, the decision of the Hon''ble Supreme Court as to the condition of the building in P.S. Pareed

Kaka and Others V. Shafee Ahmed Saheb reported in 2004 (3) L.W. 754 is relevant in which Their Lordships have held that even if the building

is in good condition, if it is not suitable for the requirement of the landlord, he can always demolish a good building and put up a new building to suit

his requirements and that it is not necessary for the landlord to prove that the condition of the building is such that it requires immediate demolition,

particularly, when the premises is required by him.

As far as the facts of the present case are concerned, even though there is no sufficient evidence on record as to the condition of the building,

still the intention of the landlord has to be gathered from the materials available from the case, as per the decision of the Hon''ble Supreme Court

and while such exercise is undertaken by this Court, it appears that he is bona fide requiring the building on that account.

Another point in this regard is about the production of the approved plan for the new building and much was stated about this before this

Court. The petitioner produced a copy of the unapproved plan before the learned Rent Controller to show that he has taken steps to get the same

approved from the Municipal Corporation, Madurai and that the same was pending for approval. It has to be noted that till the R.C.A was

disposed of, the approval was not accorded to the petitioner. But it appears that only on 04.11.2005 the approval was granted by the Madurai

Corporation and earlier to which on 22.08.2005 itself the R.C.A. was disposed of. In this connection, the learned counsel for the respondent

would argue in vehemence that since the petitioner has not obtained the approved plan from the authorities, if the approval was obtained on a

subsequent occasion would not cure the irregularities and on this count the landlord has to be non-suited for the relief.

This Court is not in acceptance with the contention of the learned counsel for the respondent as Hon''ble Supreme Court in Harrington House

School V.S.M. Ispahani and another reported in 2002-4-L.W. 639, has categorically held that even though the approved plan was not produced

at the time of filing of eviction application, still if he shows that he has taken steps to get the approval of the same, his claim could be considered.

Their Lordships have held as follows:

The decree as passed by the High Court is sustained but it is directed that the landlords shall submit the plans of reconstruction for the approval of

the local authority. Only on the plans being sanctioned by the local authority the decree for eviction shall be available for execution. Such

sanctioned or approved plans shall be produced before the Executing Court whereupon the Executing Court shall allow a reasonable time to the

tenant for vacating the property and delivering possession to the landlord-decreeholders. Till then the tenant shall remain liable to pay charges for

use and occupation of the suit premises at the same rate at which they are being paid.

Even though the landlord failed to produce the approved plan before the Rent Controller or the Rent Control Appellate Authority, the

Supreme Court found that he was ready with the plan for the proposed reconstruction and that was not submitted to the Municipal authority till the

disposal of the matter by the Supreme Court and while concluding the matter, it is held that the eviction order shall not be operative till he produces

the approved plan before the executing Court.

Following the principles laid down by the Supreme Court as aforementioned, it has to be held that even though the landlord did not produce

the plan approved by the Corporation of Madurai, he having furnished the copy of the unapproved plan by saying that he has taken steps to get the

same approved, it is enough to satisfy the requirements and a rider has to be attached in the eviction order that the eviction order shall be executed

on production of the approved plan by the landlord.

As regards the means possessed by the landlord, both the learned counsel for the party would claim that the pleadings and oral evidence are in

their favour. Firstly, in the eviction petition, the petitioner has specifically alleged that he has got sufficient funds to pull down the building and also to

put up a pucca construction.

Adverting to the oral evidence on record in this regard, the petitioner, as P.W. 1, would depose that he is having sufficient financial capacity to

construct a new building. In the cross-examination, the said evidence was not specifically denied, but some questions have been put to him to the

effect that he did not mention in the petition that he has given sufficient amount to his brother and that he has also not deposited any amount in the

bank.

The above said questions and answers would not show that the evidence in the chief-examination as to his possession of funds is categorically

denied in the cross-examination.

The learned counsel for the petitioner would state that the petitioner was working in the Electricity Board at the time of the filing of the eviction

petition and was drawing Rs.7,000/- per month and that since he was about to retire, he would get a sizeable amount. He examined P.W.2, his

clerk, who would say that by means of Ex.A5 and A6, it could be shown that the petitioner deposited a sum of Rs.4,00,000/- in National

Plywood Agency and Neso Plywood Agency. In fact both the Ex.A5 and A6, the communication received from the above said agencies inform

about the accrual of interest for the deposit. The respondent, in his chief examination as R.W.I has not specifically denied that the landlord did not

have the means for the purpose. He says that it does not appear to him that the petitioner is having means

. In the cross-examination, it has been elucidated to him that sufficient means is available with the landlord. Even though the petitioner issued a

notice earlier to the filing of the eviction application stating that he has got sufficient means, in the cross-examination, RW1 says that he did not

deny the fact in his reply notice.

The cumulative effect of the above said materials would show that the petitioner has got means and all the above said particulars also warrant

such a finding.

Since the requirement of the landlord has been found to be bona fide, the necessary corollary would be that there is no mala fide intention on

his part to evict the tenant by crooked means.

Having regard to the above said circumstances, this Court is of the considered view that the petitioner has clearly established his bona fide

requirement and hence, the order passed by the Rent Control Appellate Authority is not sustainable. It has to be set aside and it is accordingly set

aside. In the result, the Civil Revision Petition is allowed with costs, directing the respondent to vacate the demised premises within a period of two

months from the date of receipt of copy of this order. It is also directed that the petitioner shall produce the approved plan before the executing

Court along with the Execution Petition for delivery.