S.A. Ahamad vs Alagar and others

Ratnavel Pandian, J.—These three revision petitions are preferred by one S.A. Ahamad, the landlord in R.C.O.P. 34 of 1977 on the file of the Rent Controller (District Munsif), Periakulam. He filed a single petition seeking the eviction of all the respondents in these three revision petitions under S. 10 (3) (a) (iii) and 14 (1) (b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as the Act) on the grounds that the building is required for carrying on his business and that the same is bona fide required for demolition and reconstruction. The Rent Controller found both the grounds in favour of the landlord and ordered eviction. Aggrieved by the said order of the Rent Controller, the three tenants filed three independent appeals which were numbered as C.M.A. Nos. 138, 140 and 142 of 1979 before the appellate authority (Principal Subordinate Judge, Dindigul) who rendered a common judgment allowing the appeals and setting aside the order of eviction passed by the Rent Controller for the reasons set out in the said judgment, holding that the building is required neither for immediate demolition and reconstruction nor for the purpose of carrying on the landlord''s own business. Hence these revision petitions by the landlord. Before adverting to the contentions raised by the learned Advocate General on behalf of the revision petitioner in this batch of revisions, I would like to point out certain facts on the basis of which the order of eviction has been sought. The demised property is a single house situate in Periakulam Town abutting Kamaraj Road and facing south. The front portion of the building is divided into two parts with a passage in between. Adjoining these two parts, there is a hall on the northern side. The Commissioner in his plan, Ex. C2, has indicated the two parts in the front portion of the building as ''A'' and ''C'' and the back portion as ''B''. The parts marked as ''A'' and ''C'' are given door Nos. 70 and 70/2 and the portion ''B'' door No. 70/1. ''A'' is in the occupation of the respondent in C.R.P. 1240 of 1981, who is having a jewellery mart; ''C'' is in the occupation of the respondent in C.R.P. No. 1238 of 1981 who is running a barber''s saloon and ''B'' is in the occupation of the respondent in C.R.P. 1219 of 1981, who is having a photo studio. The case of the revision petitioner is that in August, 1977, he informed the respondents both in person and through his agent to vacate the premises as he wanted to demolish the building and reconstruct it for the purpose of his own use, viz, for carrying on his business under the name and style of ''Ravi Automobiles spare parts.'' On the promise given by the respondents to vacate the premises, the petitioner applied for and obtained from the Municipality the approved plan Ex. A1 and also the necessary permission under Ex. A2. But subsequently the respondents refused to vacate the building and therefore the landlord issued a notice under the original of Ex. A3, dated 22nd October, 1977 calling upon the respondents 2 and 3, sent two replies under Ex. A5 and A6 respectively. Hence, he filed the above said eviction petition.

As per the plan and permission, Ex.A1 and A2, the petitioner landlord is intending to remove the eastern wall of the shop ''A'' and the western wall of the portion ''C'' running north to south, in between which, the passage leading to the studio hall ''B'' lies (as marked in the Commissioner''s plan Ex.C2) and to put up two steel beams supporting the rafters thereby, making the parts A and C and the passage into a single big hall. The question that arises for consideration in these revision petitions is whether the proposed removal of the walls and the putting up of the two beams would amount to demolition and reconstruction and whether it would be only a structural alteration of the existing buildings. The learned Advocate-General appearing on behalf of the revision petitioner in all the three cases, would contend that as the cubical content of the enclosed space is increased or altered consequent upon the removal of the two walls and the construction of the two beams there is a substantial structural alteration changing the very identity of the building and giving a new look altogether and therefore it must be held that there is demolition and reconstruction of the building within the meaning of S. 14 (1) (b) of the Act. In support of this contention, he would first rely upon the decision in Pattabhiraman v. Accommodation Controller, Madras 1971-2-M.L.J. 326=84 L.W. 779. The relevant passage of the judgment therein reads thus :�

As already stated, the plan produced clearly makes out the situation that the first floor is sought to be interfered with materially and in many respects by the petitioner when he reconstructs the building in accordance with the sanctioned plan. The cubical content of enclosed space is increased or altered, the walls are changed and above all the roof of the premises is removed and substituted by another. In a case where the roof of a premises is removed and is substituted and this is followed by a variation of the space content of the quondam building, then undoubtedly the entire process involves not only demolition but also reconstruction.

In yet another portion of the same judgment the learned Judge has observed thus :�

I have already expressed the view that the work to be undertaken by the petitioner is effectively to change the entire phase (sic) of the building, its cubical content and its size. More than anything else the roof is sought to be removed and substituted by another of a different variety altogether.

Then the learned Advocate-General drew my attention to the decision of a Division Bench of this Court in K. Krishna v. Munusami 1978-2-M.L.J. 510=91 L.W. 454 in which the Division Bench referring to the judgment in Pattabhiraman''s case 1971-2-M.L.J. 326=84 L.W. 779, has stated thus :�

If we may so with great respect, on the facts found by the learned Judge, the decision is unassailable.

Laying strong emphasis on the above observation of the Bench, it is submitted by the learned Advocate-General that the view expressed by Ramaprsada Rao, J., as he then was in Pattabhiraman''s case 1971-2-M.L.J. 326=84 L.W. 779 is applicable to the facts of the present case where there cannot be any dispute that the removal of the two walls and the putting of the steel beams would be tantamount to demolition and reconstruction of the building within the meaning of S. 14 (1)(b) of the Act.

Mr. M.V. Krishnan, appearing for the respondents in C.R.P. 1239 of 1981, would submit that the decision in Pattabhiraman''s case 1971-2-M.L.J. 326=84 L.W. 779, cannot he made applicable to the he facts of the present case. According to him, in Pattabhiraman case 1971-2-M.L.J. 326=84 L.W. 779 the facts were entirely different, in that there was a sanctioned plan not only for the removal of the walls in the upstairs of the demised building therein but also for effecting a complete change of the roof from a tiled one into a Madras terrace whereas in the present case, the removal of the two walls not forming and the putting up of the two steel beams will not in any way make any substantial structural alteration so as to change the identity and to give a look altogether, even if the cubical content of the front portion is increased. The Division Bench of this Court in Krishnan v. Munuswamy 1978-2-M.L.J. 510=91 L.W. 454 while approving the decision of Ramaprasada Rao, J. (as he then was) in Pattabhiram''s case 1971-2-M.L.J. 326=84 L.W. 779 having regard to the facts therein has stated as follows�

All that we wish to say on this aspect of the matter regarding the decision in Pattabhiraman v. Accommodation Controller 1971-2-M.L.J. 326=84 L.W. 779, is that there appears to be somewhat an over-emphasis on the change of the roof by using the expression ''above all'' in one place and ''more than anything else'' in another place. But, as we said, we may repeat with respect that on the facts found by the learned Judge and by the authorities, there was demolition and construction of a new building, because the building let was only a particular floor where vast changes had to be made which completely destroyed the old structures on the first floor and brought into being an entirely new building. So S. 14 (1) (b) was clearly applicable.

The Supreme Court in Metalware and Co. etc. Vs. Bansilal Sarma and Co. etc., while construing the term ''bona fide'' required by the landlord for the immediate purpose of demolishing if, has observed thus :�

As stated earlier it cannot be disputed that the phrase used in S. 14 (1) (b) of the Act, is ''the building which is bona tide required by the landlord'' for the immediate purpose of demolition and construction and the same clearly refers to the bona fide requirements of the landlord, it is also true that the requirement in terms is not that the building should need immediate demolition and reconstruction. But we fail to appreciate how the state or condition of the building and the extent to which it could stand without immediate demolition and reconstruction in future would be a totally irrelevant factor while determining ''the bona fide requirements of the landlord''. If the Rent Controller has to be satisfied about the bona tide requirement of the landlord which must mean genuineness of his claim in that behalf the Rent Controller will have to take into account all the surrounding circumstances including not merely the factors of the landlord being possessed or sufficient means or funds to undertake the project and steps taken by him in that regard but also the existing conditions of the building, its age and situation and possibility or otherwise of its being put to a more profitable use after reconstruction. All these factors being relevant must enter the verdict of the Rent Controller on the question of the bona fide requirement of the landlord under S. 14(1)(b). In a sense if the building happens to be decrepit or dilapidated it will readily make for the bona fide requirement of the landlord, though that by itself is the absence of any means being possessed by the landlord would not be sufficient. Conversely a landlord being possessed of sufficient means to undertake the project of demolition and reconstruction by itself may not be sufficient to establish his bona fide requirement if the building happens to be a very recent construction in a perfectly sound condition and its situation may prevent its being put to a more profitable use after reconstruction. In any case these latter factors may cast a serious doubt on the landlord''s bona fide requirement. It is, therefore, clear to us that the age and condition of the building would certainly be a relevant factor which will have to be taken into account while pronouncing upon the bona fide requirement of the landlord under S. 14 (1) (b) of the Act and the same cannot be ignored.

In the same judgment, it is further observed as follows:

We do not agree that old age and dilapidated condition of the building is a sine qua non or a decisive factor for eviction under S. 14(1)(b) nor is it possible to accept the view that the said circumstance is totally irrelevant in pronouncing upon the bona fide requirement of the landlord. We are clearly of the view that the age and existing condition of the building-whether it is a recent construction or very old and whether it is in a good and sound condition or has become decrepit or dilapidated are relevant factors forming part of all the circumstances that have to be considered while determining the bona fide requirement of the landlord under S. 14 (1) (b) of the Act and in the totality of the circumstances these factors may assume lesser or greater significance depending upon whether in the scheme of the concerned enactment there is or there is not a provision for reinduction of the evicted tenant into the new construction. Such a view would be in accord with the main objective of the benign legislation enacted with the avowed intention of giving protection to the tenant.

Now, let me examine the facts of the present case and see whether all the requirements as contemplated under S. 14 (1) (b) of the Act and as explained in the decision cited above are fulfilled in this case.

Admittedly, the building was constructed in the year 1958. The petitioner has not let in any evidence to show that the condition of the building is not good and sound. Therefore, it has to be held that the building is not an old construction, nor is it in a dilapidated condition but on the other hand is in a good and sound condition. The three shops are let out to the respondents. Now, the petitioner is laying a claim that he requires the said building for his own use by altering and changing its dimensions and increasing the cubical content of the space. Before examining the petitioner''s bona fide requirement of the building for his own use, let me examine whether the removal or destruction of the two walls forming the passage and the putting up of the two steel beams would be tantamount to demolition and reconstruction within the meaning of S. 14 (1) (b) of the Act.

As already pointed out, the facts in Pattabhiraman''s case 1971-2-M.L.J. 326=34 L.W. 779, were entirely different from the facts of the present case. In Pattabhiraman''s case 1980-2-M.L.J. 329=84 L.W. 779, the first floor of the demised building therein was sought to be interfered with materially and in many respects by the landlord as per the sanctioned plan, such as putting up a staircase, etc, and the cubical content of the enclosed space was increased or altered, the walls were changed and above all the roof of the premises was removed and substituted by another. Thus, as there was a complete variation of the space content of the quondam building on account of the effective change given to the entire face of the building, it was held, having regard to the facts of that case, that the said removal of the walls, the change of the roof, etc, amounted to demolition and reconstruction. But in the present case the mere removal or destruction of the two walls inside the building, which are in the nature of partition walls and the putting up of the two steel beams for support of the rafters, in my view, would not materially alter the structure of the building giving a new face to it, though the removal of these two walls may increase the cubical content of the space enclosed by the shops ''A'' and ''C'' and the space in between, as indicated in the plan Ex.C2.

Ratnam, J. in Kanakavalli v. Drugs and Chemicals, Kumbakonam 1980-2-M.L.J. 392 has held that the conversion of the existing thatched and tiled roofs of the front and rear portions of the building into R.C.C. roofing while leaving untouched the middle portion of the building, would not amount to demolition and reconstruction.

Sengottvelan, J. in Thirupathi v. Maimoon Bibi and others 1981 T.L.N.J. 510=95 L.W. 35 agreeing with the view taken by Ratnam, J. in Kanakavalli v. Drugs and Chemicals 1980-2-M.L.J. 392, has held that the renewal of an existing roof of the front portion of a building and conversion thereof into a reinforced concrete, the alteration of the tiled verandahs and the shifting of the latrine, would not amount to demolition and reconstruction.

The meaning of the word ''demolition'' is defined in the Corpus Juris Secundum, Volume 26, at page 178 as follows�

The word has been held synonymous with destruction. It has been distinguished from removal.

I think it is not necessary for me to refer to all the dictionary meanings for the word ''demolition'' since the Division Bench in Krishnan v. Munuswami 1978-2-M.L.J. 510=91 L.W. 454 has elaborately discussed the meaning of the word ''demolish'' as given in a number of dictionaries.

The landlord, examine himself as P.W.I had admitted in his evidence as follows�

The above admission clearly shows that even though he filed the petition on the ground of demolition and reconstruction and for his own use, he had no intention of constructing a new building after demolishing the same. It will not be out of place to mention here that the Advocate-Commissioner in his report, Ex. C1 has stated that the entire building was constructed in the year 1958 and there was no crack in the said building. Hence, I hold that the building does not warrant demolition. Further, for the discussions made above. I hold that the mere demolition of the two walls which are in the nature of partition walls and the putting up of the two steel beams will not materially change the structure of the building or give it an entirely new face though the cubical content of the space enclosed is increased, and thus it will not amount to ''demolition and reconstruction'' within the meaning of S. 14 (1) (b) of the Act.

Then the next question is whether the landlord bona fide requires the building for carrying on his own business. The petition for eviction was filed before the Rent Controller on 4th December, 1977. Earlier to the filing of this petition, the landlord has sent a notice under Ex.A3, dt. 22nd October, 1977. If really the landlord had intended to start''s business in Automobile spare parts, he would have definitely mentioned in Ex.A3, about his intention of carrying on his own business in the said building. But, there is absolutely no whisper of the landlord bona fide requiring the building for his own use in Ex.A3. Further, admittedly there is no evidence to show that the landlord had made any arrangements to carry on the business in automobile spare parts in the building. Therefore. I hold that the case of the landlord that he bona fide requires the building for his own use is not acceptable. For all these reasons stated above. I do not see any merit in the revision and consequently all these revisions are dismissed. No Costs.