S. Raju and 9 others vs K. Nathamani

S.S. Subramani, J.—All these Revision Petitions are filed by tenants who occupy various portions of the same building. Landlord sought eviction of these tenants on the ground that they have committed wilful default in payment of rent and also that the building requires immediate demolition and reconstruction. Except in R.C.O.P. No. 20 of 1993 from which CRP No. 1984 of 1997 arises, in all the other eviction petitions, the Rent Controller as well as the Appellate Authority found that the tenants are liable to be evicted only on the ground of demolition and reconstruction. In those Petitions, it was found that the tenants were not in arrears and that they have not defaulted in payment of rent. But in CRP. No. 1984 of 1997, eviction was ordered by the Rent Controller on both the grounds and the same has been confirmed in appeal. The orders of both the Authorities below are sought to be revised u/s 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, on the ground that the orders are illegal, improper and irregular.

Learned counsel for revision petitioners submitted that there is no evidence in this case to show that the building is not in a good condition. Except for the oral evidence of the landlord that the building is in a dilapidated condition or that it requires immediate demolition and reconstruction, no legal evidence has been let in. It is also their case that the other ingredients under Sec.14(1)(b) of the Rent Control Act have not been proved. According to the revision petitioner, the decisions of the Authorities below are based on no evidence and, therefore, it is a case where interference under the revisional jurisdiction of this Court will be proper.

As against the said contention, learned counsel for the landlord submitted that if the Court is satisfied that the condition of the building requires demolition, merely because a Commission is not taken, or that an Engineer has not been examined, it cannot be said that there is lack of good faith on the part of the landlord. Learned Counsel submitted that the expression ''condition of the building'' is not to be interpreted only taking into consideration the condition of the superstructure. It has got a larger meaning and if that is taken into consideration, the findings of the Authorities below do not call for interference.

The circumstances under which eviction could be ordered on the ground of Section 14(1)(b) of the Rent Control Act have come up for consideration in many decisions.

In a recent decision, viz., Vijay Singh etc. etc. Vs. Vijayalakshmi Ammal, in paragraph 4 of the judgment, at page 481, after referring to many decisions of the Supreme Court. Their Lordships have held thus:-

"The framers of the Act should have made their intention more specific and clear while enacting Section 14(1) (b) of the Act, instead of leaving it to the courts to interpret the same from time to time. It is not clear and specific whether the expression "immediate purpose of demolishing" is linked with the condition of the building or with the need of the landlord to demolish an existing building in order to erect a new building on that site. As the Act purports to give protection to the tenants from eviction it cannot be held that the time for eviction is to be decided at the will and desire of the landlord. Therefore, the expressions "immediate purpose for demolishing" cannot be read to mean the immediate need and urgency of the landlord. But at the same time it cannot be linked only with the dilapidated and dangerous condition of the building. The age and condition of the building has to be taken note of while judging the question of bona fide requirement of the landlord u/s 14 (1) (b). But the question is as to where to draw the line? Whether it should not only be old but dilapidated at the same time being unsafe for human habitation? If that was the requirement for passing an order of eviction, then why the framers of the Act have put the other condition that such demolition is to be made for purpose of erecting a new building on the site? There are Acts in some States where one of the grounds for eviction of the tenant is that condition of the building is such that it has to be demolished. But in those Acts there is no requirement or condition to erect a new building on the same site. But in the present Act the condition of erecting a building on the site of the old building is a must. The Rent Controller has been vested with the power to direct the tenant to deliver the possession of the building to the landlord only after he is satisfied that after demolition of the old building a new building shall be erected. That is apparent not only from Section 14 (1) (b) but from Section 16 also which provides:

"16. Tenant to occupy if the building is not demolished. --- (1) Where an order directing delivery of possession has been passed by the Controller under clause (b) of sub-section (1) of Section 14 and the work of demolishing any material portion of the building has not been substantially commenced by the landlord within the period of one month in accordance with his undertaking under clause (b) of sub-section (2) of Section 14 the tenant may give the landlord notice of his intention to occupy the building the possession of which he delivered. If within fifteen days from the date of such notice, the landlord does not put him in possession of the building on the original terms and conditions, the tenant may make an application to the Controller within eight weeks of the date on which he put the landlord in possession of the building. The Controller shall order the landlord to put the tenant in possession of the building on the original terms and conditions.

(2) Where in pursuance of an order passed by the Controller under clause (b) of sub-section (1) of Section 14, any building is totally demolished and a new building is erected in its place, all the provisions of this Act shall cease to apply to such new building for a period of five years from the date on which the construction of such new building is completed and notified to the local authority concerned."

In view of sub-section (1) of Section 16 if the work of demolishing any material portion of the building is not substantially commenced by the landlord within the period of one month in accordance with his undertaking under clause (b) of sub-section (2) of Section 14, the tenant may give the landlord notice of his intention to occupy the building the possession of which he has delivered. Thereafter the Controller can direct the landlord to put the tenant in possession of the building on the original terms and conditions. If Section 14 (1)(b) of the Act is interpreted to cover only buildings which are dilapidated and dangerous for human habitation, sub-section (1) of Section 16 would not have provided for reinduction of the tenant in such a building on original terms and conditions."

(Emphasis supplied)

Their Lordships further went on and said in para 10 thus:-

"On reading Section 14 (1) (b) along with Section 16 it can be said that for eviction of a tenant on the ground of demolition of the building for erecting a new building, the building need not be dilapidated or dangerous for human habitation. If that was the requirement there is no occasion to put a condition to demolish within a specified time, and to erect a new building on the same site. Sub-section (1) of Section 16 contemplates that permission has been granted by the Rent Controller u/s 14 (1) (b) for demolition of the building, but if such demolition is not carried out in terms of the order and undertaking, then the Rent Controller can order the landlord to put the tenant in possession of the building on the original terms and conditions. If the building is dangerous and dilapidated requiring immediate demolition for safety, then there is no question of the Rent Controller directing the landlord to put the tenant in possession of such building on the original terms and conditions, on account of the failure of the landlord to commence the demolition within the period prescribed. Similarly, there was no occasion to link the demolition of such building with erection of new building and then to give the landlord freedom from the restrictive provisions of the Act for a period of five years from the date on which the construction of such new building is completed and notified to the local authorities concerned. In this background, it has to be held that neither of the extreme position taken by the respondent or the appellants can be accepted, 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 of the appellants 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. There are some of the illustrative factors which have to be taken into consideration before an order is passed under Sec. 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."

(Emphasis supplied)

A reading of the aforesaid decision of the Supreme Court makes it clear that their Lordships have not exhausted the conditions on which eviction could be ordered under S.14 (1) (b). As stated by their Lordships, those are only some illustrations which have to be taken into consideration before an order could be passed under Sec.14 (1) (b). In the concluding portion of the judgment, their Lordships took note of the fact that new buildings have come up in the locality and that is also one of the reasons for confirming the order of eviction. Modern amenities in a new building are also stressed by their Lordships in the concluding paragraph. So, it is not the strength of the physical structure that has to be given importance, though it is a relevant factor to be considered. It is not of primary importance.

It has come out in evidence that the building is situated in an important locality and the schedule building is more than 50 years old even on the date of petition. It is situated in the heart of Erode Town, an important town in Tamil Nadu, the same being a commercial centre. The evidence of the tenants shows that they had to repair the premises every now and then; they used to plaster the walls, fill up the cracks, etc. Along with the same, the Court can also take into consideration the present circumstances. All the tenants are paying Rs. 75/- per mensem as rent. Taking into consideration the importance of the locality and the development that has taken place, the rent which the landlord gets is really meagre. As I said already, their Lordships have given only certain examples to come to the conclusion while assessing the condition of the building. If the condition of the physical) structure is only one of the relevant factors, naturally the Court will have to consider various other factors also to assess the condition of the building.

(Emphasis)

In one of the earliest decisions of the Supreme Court reported in Neta Ram Vs. Jiwan Lal, their Lordships said thus:-

"Before a landlord can obtain an order for ejectment of his tenant on ground of his requirement for reconstruction of a house, he must satisfy the Rent Controller about genuineness of his claim 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 its being put to a more profitable use after construction, the means of the landlord and so on."

(Emphasis supplied)

Following the decision of the Supreme Court, the Kerala High Court had occasion to consider similar provision under the Kerala Rent Control Act, and the decision is reported in 1964 ILR Kerala 254 (Narayanan Nair v. First Additional District Judge, Trivandrum and others). A learned Judge of that High Court held that to look into the physical structure alone will amount to giving a narrow construction to the Section, and the learned Judge interpreted the same thus:-

"The approach made by both the Rent Controller and the appellate authority that it is only when the building is in a dangerous or dilapidated condition that the landlord can ask for eviction u/s 11 (4) (iv), is not at all warranted by the provision of the statute itself. This will be placing a very narrow interpretation upon the provisions concerned. The location of the building, the age of the building, the physical condition of the building and also the developing nature and nature of the development of the area where the particular building itself is situated, whether he has got the necessary plan and licence and also the financial ability to rebuild are other aspects which will have to be taken into account in coming to a conclusion as to whether the claim by the landlord u/s 11 (4) (iv) of the Act is to be accepted or not."

In 1970 Kerala Law Times 257 (Kalliani v. Madhavi), V.R. Krishna Iyer, J., as he then was, had occasion to consider a similar question. Following the decision in AIR 1963 SC 499 (referred to supra), learned Judge held thus:-

"Counsel, however, argues and rightly, that the building must be in such a condition that it needs reconstruction and this ingredient has to be made out apart from the landlord''s bona fide intention to reconstruct. Here, it is argued that the stress is upon the physical condition of the building. I do not agree. If eviction can be had only on the Court being satisfied that the physical condition of the building is on the verge of collapse, there is no. doubt that few buildings could be evicted before they have actually collapsed. Knowing the length of time taken in rent control litigation in Kerala, - not unusual to find the period between the institution of an application and its ultimate disposal in the revisional court lengthening into several years - if a building perilously close to sinking alone can justify a petition under 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 road 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 construction 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 the surroundings of the place, the Court has got to take a more liberal view in applying the provision of law."

(Emphasis supplied)

Taking into consideration all the above decisions, Justice P. Subramanian Poti, Ag.C.J., in AIR 1983 Kerala 29 (Varghese Mathews v. Fakir Rawther Abdul Razack), has held thus:-

"... it is not merely the physical condition of the building that is the criterion to determine the question of need for reconstruction. Many other considerations must necessarily enter into the determination of the question whether the building is in such a condition as needing reconstruction. The age of the building, its adaptability for current use, the economic viability of keeping the building in the same condition are all matter which may have to be taken into account. The locality in which the building is situate might have become much more important since its construction years earlier and the construction of a new building utilising the ground space to the maximum benefit of the owner may bring in much more advantageous return to him. That may be a ground for seeking eviction for the purpose of reconstruction....."

(Emphasis supplied)

On going by the relevant Section in the Tamil Nadu Act also, I feel that the interpretation given by the Kerala High Court regarding the condition of the building can be adopted, especially when their Lordships of the Supreme Court in Vijay Singh''s case (supra) have said that the factors mentioned therein are only illustrative and not exhaustive.

I have already mentioned about the importance of the locality where the building in question is situated. It is said to be one of the nerve centres of Erode Town. The tenants themselves had to repair the demised premises on various occasions. It is more than 50 years old. It is nobody''s case that after the construction of the building 50 years back, no other buildings have come up in that locality. When new buildings with modern amenities have come up in that locality, naturally, the schedule building becomes unsuitable to the surroundings. In fact, the building in question in its present condition is a liability to the landlord. Keeping the building in the same condition will amount to asking the landlord to shoulder the burden for ever. If a new building is constructed in that place, it can never be doubted that both the landlord and the tenants will be in a better position, and it will be economically advantageous to both of them, and it will not be a proper construction of the Statute if the landlord is asked to continue to retain the building as it is after effecting repairs. Tenants may be satisfied with the present state of the building since they have to pay only a nominal rent. But, the Rent Control legislation, as interpreted by the Honourable Supreme Court is beneficial to both the landlord and tenant, and, therefore, interests of both of them should be taken into consideration. If Section 14 (1) (b) of the Rent Control Act is to be interpreted in that way, I do not think that the Authorities below have gone wrong in ordering eviction. The landlord has produced the estimate for reconstruction, the plan and licence. The Authorities below have also believed the evidence of the landlord in coming to the conclusion that the building requires reconstruction. Taking into consideration the evidence of the tenant also, the Authorities were justified in coming to the conclusion that the building requires immediate demolition and reconstruction. In this connection, the decision reported in 1996-2-L.W. 772 (Venugopal & others v. Fathima Beevi and another) also requires consideration wherein I have said that the non-examination of a Commissioner or Engineer is not fatal to the case, and for that reason alone, an eviction petition cannot be dismissed. The Court is concerned about the genuineness of the claim.

The finding regarding bona fides is a finding of fact. Unless the revision petitioners satisfy this Court that the said finding is perverse, this Court is not expected, while exercising the revisional jurisdiction, to reverse the said finding. The tenants have miserably failed on that point.

The landlord has said that he has approached the financial institutions, and they are prepared to advance necessary funds for reconstruction. It is settled law that for the purpose of proving his bona fides, the landlord need only show that he has got the capacity to raise the necessary funds. The landlord has also said that he has got other properties which he can sell and raise necessary funds if the amounts advanced by the financial institutions are not sufficient. That part of the evidence was also accepted by the Authorities below. The plan and licence have been filed. The estimate is also before Court, and tenants have also no case that the landlord has come to Court with any oblique motive. The landlord has also given an undertaking that he will demolish the building and start the reconstruction of the same, within the time stipulated. When the statutory conditions are satisfied, and the evidence also proves the genuineness of the claim, the revisional Court should be slow in interfering with those findings. It is also settled law that for the purpose of entering a different finding, the evidence should not be reappreciated. If, on the evidence available, such a finding is possible, the Revisional Court has only to confirm the said findings. The findings of the Authorities below that all these tenants are liable to be evicted on the ground of immediate demolition and reconstruction are, therefore, confirmed.

In regard to C.R.P. No. 1984 of 1997, eviction was ordered on the ground of wilful default in payment of rent also. According to me, such a finding is also to be confirmed.

It has come out in evidence that as between the members of the family of the landlord, there was some dispute and a partition suit was filed. The landlord''s elder brother was originally receiving the rent for the schedule premises. His name is Kuppuswami. The partition suit was settled out of Court, and as per the terms of compromise, the schedule building was allotted to the share of the landlord herein. It is the case of the landlord that immediately after allotment of the schedule building to him, he informed all the tenants to pay the rent to him. Of course he did not send any registered notice to that effect. But his evidence is that he informed the tenants individually. This evidence of the landlord was accepted by both the Authorities below. After such an intimation, petitioner (tenant) in CRP 1984 of 1997 filed a suit as O.S. 542 of 1989 against Kuppuswami alone to restrain him from interfering with his possession. In that suit, Kuppuswami filed a written statement that the building in question does not belong to him, and that the same was allotted to the landlord in this case. Even thereafter the tenant did not think of tendering the rent to the respondent herein. He did not pay the rent to anyone. Subsequently the rent was paid only when the eviction petition was filed and notice of the same was received by the tenant. The conduct on the part of the tenant was rightly appreciated by the Authorities below in coming to the conclusion that he was not willing to pay rent in spite of the fact that he knew that the respondent herein is his landlord. The said finding cannot be termed as per verse, as contended by learned counsel for petitioner. In the result, all the Revision Petitions are dismissed, however, without any order as to costs. Connected C.M.Ps. are also dismissed.