Saravana and Co. vs Lalitha Natarajan

N. Kirubakaran, J.—The petitioners are tenants under the respondent''s premises in respect of two shop portions bearing Nos. 1 & 2 at Old No. 10, New No. 31, Arya Gowda Road, West Mambalam, Chennai 600 033. The case of the respondent/landlord before the Rent Controller Court is that the building in question is in a dilapidated condition and she requires it for immediate demolition and re-construction. Moreover, the Kalyana Mandapam, which is located in the premises, lacks modern facilities, and therefore, she sought for eviction on the ground of Section 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred as ''the Act''). The petition was contested by the petitioners/tenants. The learned Rent Controller allowed the petition and the same was confirmed in the appeal. Against the said order only, the present revision has been filed.

Mr. G. Krishnamoorthy, the learned counsel appearing for the petitioners would contend that both the Courts below committed irregularity by not referring to Section 14(1)(b) of the Act which prescribes time limit for demolition and reconstruction. Therefore, it is in violation of the statutory provisions. Further, the learned counsel for appearing the revision petitioners would submit that in case the respondent/landlord was given time limit, as per Section 14(2)(b)of the Act, the petitioners would have had the benefit under Section 33(2)(b) of the Act, by which the petitioners can prosecute and punish the landlord/respondent. He would further submit that so far as the merits are concerned, he is not going to deal with the same as the possession was already taken after the dismissal of the said petition by the Appellate Authority. Subsequently, the petitioners have also filed a suit before the civil Court and an order of injunction was sought restraining the respondent/landlord from demolishing the building. He would admit that though the building had already been demolished, the grievance aired by him is that the required mandatory provision has not been complied with. On the above line of the submission, he seeks an order to set aside the eviction order passed by the lower Courts.

In this connection, the learned counsel for the petitioners relied upon the judgment of this Court in R.P. David and Another Vs. M. Daniel and Others, , V.P. Selvaraj Vs. V. Narasimha Rao by Power Agent V. Sethu Rao and Another, and R. Alamelu Vs. Visalakshi wherein it has been held that the requirement of giving an undertaking as per Section 14(2)(b) of the Act is mandatory and as such failure to give an undertaking cannot cure the petitioners.

Heard the learned counsel appearing for the respondent/landlord.

Though Mr. G. Krishnamoorthy, learned counsel appearing for the petitioners would contend that the petitioners are not arguing the case on merits, as the petitioners were dispossessed, pursuant to the dismissal of the appeal by the Rent Control Appellate Authority. A perusal of the orders passed by the Courts below would disclose that the evidence on the side of the petitioner/respondent was produced through Ex. P1 to P8, including demolition and reconstruction plan approved by the Corporation of Chennai to demolish the building, and in fact, it was admitted by RW2 himself in the evidence stating that the building is in a dilapidated condition. Moreover, both the Courts below took into consideration Ex. P9-notice issued by Chennai City Corporation to lock and seal the total building on the ground of unauthorised usage. The said document was also admitted by RW2 in his cross examination. Moreover, RW 1 admitted in his evidence that no other tenants are in occupation of the building, except the second respondents, who is running a coffee shop and that the Kalyana Mandapam is not functioning in the building. Relying upon the petitioners documents, which proved that the condition of the building is not good and requires immediate demolition and reconstruction and also the admission made by the petitioners/tenants themselves, the eviction order was passed and the same was confirmed by the Appellate Authority. Therefore, on merits also there is no point in favour of the petitioners. Hence, the eviction order cannot be interfered with.

The material point raised by Mr. G. Krishnamoorthy, learned counsel appearing for the petitioners is that both the Courts below failed to follow the mandatory provision namely, Section 14(2)(b) of the Act, whenever the eviction is ordered on the ground of demolition and reconstruction under Section 14(1)(b) of the Act. The grievance of the petitioners is that no undertaking was given by the respondent/landlord that she shall undertake for demolishing the building within one month and completing the same before the expiry of three months. If such an undertaking is there and such a clause is introduced in the order, it would enable the petitioners to get back the possession of the property and in case of violation also, to punish the respondent/landlord under Section 33(2)(b) of the Act.

On the other hand, the learned counsel for the respondent/landlord denied the contention. In this connection, it is relevant to extract Section 14 and 33 of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960, which are as follows.

Recovery of Possession by landlord for repairs or for reconstruction:-(1) Notwithstanding anything contained in this Act, but subject to the provisions of Sections 12 and 13, on an application made by a landlord the Controller shall, if he is satisfied-

(a) that the building is bona fide required by the landlord for carrying out repairs which cannot be carried out without the building being vacated; or

(b) that the building is bona fide required by the landlord for the immediate purpose of demolishing it and such demolition is to be made for the purpose of erecting a new building on the site of the building sought to be demolished, pass an order directing the tenant to deliver possession of the building to the landlord before a specified date.

(2) No order directing the tenant to deliver possession of the building under this Section shall be passed-

(a) on the ground specified in clause (a) of sub-section (1), unless the landlord gives an undertaking that the building shall, on completion of the repairs, be offered to the tenant, who delivered possession in pursuance of an order under sub-section (1) for his reoccupation before the expiry of three months from the date of recovery of possession by the landlord, or before the expiry of such further period as the Controller may, for reasons to be recorded in writing allow; or

(b) on the ground specified in clause (b) of subsection (1) unless the landlord gives an undertaking that the work of demolishing any material portion of the building shall be substantially commenced by him not later than one month, and shall be completed before the expiry of three months, from the date he recovers possession of the entire building or before the expiry of such further period as the Controller may, for reasons to be recorded in writing allow.

(3) Nothing contained in this section shall entitle the landlord who has recovered possession of the building for repairs to convert a residential building into a non-residential building or a non-residential building into a residential building unless such conversion is permitted by the Controller at the time of passing an order under sub-section(1).

(4) Notwithstanding an order passed by the Controller under clause (a) of sub-section(1) directing the tenant to deliver possession of the building, such tenant shall be deemed to continue to be the tenant, but the landlord shall not be entitled to any rent for the period commencing on the date of delivery of possession of the building by the tenant to the landlord and ending with the date on which the building is offered to the tenant by the landlord in pursuance of the undertaking under clause (a) of sub-section(2).

(5) Nothing in this section shall entitle any landlord of a building in respect of which the Government shall be deemed to be the tenant to make any application under this section.

Penalties- (1)If any person contravenes any of the provisions of [sub-sections (1), (1-A), (2), (4) and (5) of Section 3] sub-section (4) of Section 3-A, sub-sections (1)(a) and (2)(a)of Section 7, sub-section (1) of Section 8, sub-section (1) of Section 17, Section 21, sub-section (2) of Section 22 or Section 32, or any order under sub-section (3) or sub-section (3-A) of Section 10 or sub-section(3) of Section 17, or any of the conditions in the notification issued under Section 29, he shall be punishable with fine which may extend to two thousand rupees.

(1-A) Any landlord or the member of his family, as the case may be, who after obtaining possession of building under sub-section (3) or sub-section (3-A) of Section 10, does not occupy it within one month of his taking possession or having so occupied, vacates it without reasonable cause within six months of such date, shall be punishable with fine which may extend to two thousand rupees].

(2)(a) Any landlord who after the allottee has vacated the building before the date specified in the order passed under clause (a) of sub-section (1) of Section 12, fails to commence the work of repairs without reasonable excuse and any landlord or other person in occupation of the building who fails to comply with the order passed by the authorised officer under sub-section (6) of Section 12 shall, on conviction, be punishable with fine which may extend to [two thousand rupees].

(b) Any landlord who recovers possession on the ground specified in clause(b) of sub-section (1) of Section 12 and fails to carry out the undertaking referred to in clause (b) of sub-section (3) of the said section without any reasonable excuse or fails to comply with the conditions and restrictions prescribed under sub-section (2) of the said section or fails to comply with the order of the authorised officer under sub-section (1) of Section 13 shall, on conviction, be punishable with fine which may extend to [two thousand rupees].

(3)(a) Any landlord who after the tenant has vacated the building before the date specified in the order passed under clause (a) of sub-section (1) of Section 14 fails to commence the work of repairs without reasonable excuse and any landlord or other person in occupation of the building who fails to comply with the order passed by the Controller under sub-section (2) of Section 15 shall, on conviction, be punishable with fine which may extend to [two thousand rupees].

(b) Any landlord who recovers possession on the ground specified in clause(b) of sub-section(1) of Section 14 and fails to carry out the undertaking referred to in clause (b) of sub-section (2) of the said section without any reasonable excuse or fails to comply with the order of the Controller under sub-section(1) of Section 16, shall on conviction, be punishable with fine which may extend to [two thousand rupees].

From a perusal of Section 14 of the Act, it is very clear that if the eviction is ordered under Section 14(1)(b) of the Act for the purpose of immediate demolition of the building and erecting a new building, an undertaking needs to be given as per Section 14(2)(b) of the Act stating that the work of demolishing any material portion of the building shall be substantially commenced by the respondent/landlord within one month and shall be completed before the expiry of three months. The said undertaking given by the respondent/landlord, as pointed out by the learned counsel for the petitioners/tenants, in paragraph 16 of the Rent Control Original Petition, which reads as follows.

"16. The petitioner undertakes that the work of demolishing any material portion of the building shall be substantially commenced by the petitioner not later than one month and shall be completed before the expiry of three months from the date from the petitioner recovers possession of the entire building."

From the above, it is very clear that the respondent/landlord already gave an undertaking as per Section 14(2)(b) of the Act and therefore, nothing could be found fault with the respondent/landlord.

The Rent Controller incorporated the pleadings of the petitioners including the undertaking in paragraph No. 1 of the order. The relevant portion of the order in paragraph No. 22 reads as follows:

"22. As discussed above, the petitioner has proved her bonafideness in seeking the petition building for demolition and reconstruction. The petitioner has also proved all the pre-conditions required for the demolition and reconstruction. She has also given sufficient undertakings to carry out the demolition and reconstruction assignment."

The above order would make it clear that the trial Court took into consideration the undertaking given by the respondent/landlord and the same was considered and incorporated in the order. Therefore, the order of the trial Court cannot be attacked on the ground that it has not been passed as per Section 14(2)(b) of the Act.

As far as the Appellate Court Judgment is concerned, as rightly pointed out by the learned counsel for the respondent/landlord, the averments of the respondent/landlord has been incorporated in paragraph No. 2 of the judgment. The lower appellate Court took into consideration the provision of Section 14(1)(b) of the Act, and observed as follows:

" 10. The respondent/landlord has been full filled the legal obligations which is contemplated under Section 14(1)(b) of the TNB (L & RC) Act. She is giving proper undertaking in her petition as well as in her evidence."

Therefore, it is clear the grievance expressed by the petitioners/tenants was already taken care of.

Mr. G. Krishnamoorthy, the learned counsel appearing for the petitioners would submit that the decretal order is not consonance with Section 14(1)(b) of the Act. A perusal of the appellate Court judgment would denote that the eviction order passed by the trial Court has been only confirmed by stating that the order and the decretal order passed by the learned Rent Controller stands confirmed and the appeal is dismissed. Therefore, it cannot be said by any stretch of imagination that the orders and decrees have been passed in violation of 14(1)(b) of the Act. Assuming for a movement that even the decree has not been properly drafted, that cannot be a reason to find fault with the eviction order passed by the learned Rent Controller as well as the Appellate Authority, which will not go to the root of the matter. Therefore, the said plea also fails.

The judgments relied upon by the learned counsel for the petitioners relates to the circumstances in which the landlord failed to give an undertaking petition itself, whereas in the instant case the respondent/landlord has given a proper undertaking in the petition itself and that was considered by the courts below properly.

Since the possession has already been taken as per the law by the respondent/landlord, it should be deemed that the petition has become infructuous. This order has been passed accordingly. In the result, the civil revision petition fails and the same is dismissed. No costs. Consequently, the connected Miscellaneous Petition is also closed.