S.P. Kasi Viswanathan Chettiar vs S. Kalyanaraman

This revision is directed against the judgment of the Rent Control Appellate Authority, Sub Court, Thanjavur, in R.C.A.No.40 of 1993,

reversing the order of the learned Rent Controller, Thiruvaiyar, in R.C.O.P.No.6 of 1991.

The landowner sought for eviction of the tenant on the ground of personal requirement and for demolition and reconstruction. The tenant is the

revision petitioner. In the eviction petition, the respondent herein, contended that he is the owner of the petition premises having purchased the

same under a sale deed dated 12.12.1990. The tenant is aware of the purchase and has paid rent up to the end of May, 1991. The building was

constructed more than 80 years ago and as the building was not properly maintained, it has become very dilapidated with several big cracks on the

ceiling as well as the side walls. The condition of the building was very dangerous and likely to cause damage to the occupant and also resulting in

loss to the landowner. Therefore, the tenant has to vacate the premises to enable him to demolish the building and for reconstruction. He also

undertook to commence the work within a period of three months after the premises was vacated. In fact, the other tenants who were occupying

the portion on the southern side of the same building having appreciated the requirement of the landowner, had vacated their respective portions.

But the tenant was refusing to oblige in spite of several personal and oral request. Hence, a legal notice was sent on 14.6.1991 for which a reply

was sent by the tenant contending false allegations. The landowner further contended that he was residing with his parents, unmarried brothers and

sisters and also an uncle who was a bachelor. They were all residing at Door No.9, North Madavilagam, Thiruvaiyar Town, comprising 12

members. On the rear side of the same house, there was a tenant who has been in occupation for a very long time. The younger brother of the

landowner was a student of Indian Medicines and after completion of the course, he has to be married and he would require the premises for his

personal requirement and for a clinic. Hence the petition building was required for personal occupation of the landowner and for demolition and

reconstruction. Hence, the petition was filed u/s 14(1)(b) and Section 10(3)(a) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 18 of

1960.

In the counter filed by the tenant, it was contended that it was false to state that the building was constructed 80 years ago and that it was in a

dilapidated condition. The building was not required for demolition. It was also false to state that the other tenants on the southern side had vacated

the building so as to enable the landlord to start reconstruction. It is further stated that the land owner had got other places of residence other than

the house mentioned in paragraph No.5 of the petition. Therefore, the contention that the petition property was required for the personal

occupation of his brother was not correct. The landowner''s brother was not living with him. The previous owner of the petition property had

leased out the property to the wife of the tenant for the purpose of running a wet grinder industry and the object of the tenant at the inception was

to run the said factory. Therefore, the wife of the tenant was in possession and enjoyment of the property. The tenant''s family was occupying only

a small portion of the property. The petition had not been filed with bona fide intention and there was no real requirement for demolition and

reconstruction.

On the basis of the said pleadings and the evidence, the learned Rent Controller held that there was no bona fide requirement of the premises

either for personal occupation or for demolition and reconstruction. He also held that clubbing of the reliefs for personal occupation and for

demolition and reconstruction was fatal to the claims of the landowner. As regards the controversy as to whether the respondent in R.C.O.P. was

the actual tenant or not and whether it was only Meenakshi Ammal, the wife of the respondent in the R.C.O.P. was the tenant, the Rent Controller

held that there was no proper material to establish any landlord-tenant relationship between the petitioner and the respondent. With the result, the

petition was dismissed. On appeal by the land owner the appellate authority on a discussion of the evidence held that Ex.P.8 clearly established

that it was only the respondent in the R.C.O.P. who was the actual tenant and the tenancy was admitted by the landowner in the reply notice itself.

As regards the personal requirement, the appellate authority held that the requirement for the brother of the landowner cannot be accepted since he

cannot be considered as a member of the land owner''s family or as a dependent and hence eviction sought for u/s 10(3)(a) of the Act was

rejected. However, on the issue of requirement for demolition and reconstruction, the appellate authority held that the building was a very old one

requiring demolition and reconstruction and that the land owner had also taken bona fide steps before the local authorities by submitting a plan for

reconstruction. It was also held by the appellate authority that the landlord required the premises for bona fide demolition and reconstruction. The

appellate authority also held that the ground on which the Rent Controller dismissed the application namely, due to clubbing of both the grounds,

was not sustainable. With the result, the appeal was allowed and eviction was ordered on the ground of requirement of demolition and

reconstruction. Hence, the present revision by the tenant.

The only issue which arises for consideration is the entitlement of the landlord for vacant possession for the purpose of demolition and

reconstruction. According to learned counsel for the revision petitioner/tenant, the landlord has not properly established that the condition of the

building was such that as would require demolition and reconstruction. A further point which is raised for consideration is that the statutory

undertaking required to be given in terms of Section 10(1)(b) had not been complied with by the landlord and hence the non-compliance was fatal

to the eviction petition.

Learned counsel for the petitioner seeks to rely on the judgment of Ravindranath Vs. Samuel Asirvatham, . In considering the petition for

eviction u/s 14(1)(b) of the Act, on facts, the learned Judge held that the essentials to be proved have not been established and the bona fides had

not been established. On facts, the learned Judge found admittedly as per the plan, only the tiled roof had to be changed and other portions did not

require any alteration.

Further reliance is placed on the judgment of R. Balasubramanian, J. in R. Srinivasan Vs. V. Thangaraju and Others, . In that case also having

regard to the facts of the case and the evidence let in by the parties, the learned Judge had held that the condition of the building had not been

properly established.

Further reliance is also placed on the judgment of the Supreme Court in Vijay Singh etc. etc. Vs. Vijayalakshmi Ammal, , relying on the

observations that age and condition of the building should be taken into account while deciding the bona fide requirement of the landlord.

I have considered the evidence in the context of the landlord''s claim for demolition and reconstruction. In the face of the following admission by

the tenant/respondent himself as R.W.1, a case for demolition and reconstruction is clearly made out.

The above admission is in addition to the positive evidence filed by the landlord both oral and documentary as regards the age and condition of the

building. The finding of the appellate Court rendered after detailed analysis of the evidence and coupled with the categoric admission by the tenant

himself as regards the nature of the building, has to be affirmed and there is absolutely no difficulty in coming to the conclusion that the building is

old enough to justify demolition and reconstruction. Exs.P.3 to P.5 reveals the steps taken by the landlord for obtaining sanction of the plan. The

decisions cited by learned Counsel for the petitioner cannot have any relevance to the facts of the present case. In fact, in the decision of the

Supreme Court cited by learned counsel for the petitioner himself in Vijay Singh etc. etc. Vs. Vijayalakshmi Ammal, , the Supreme Court has held

that the building need not be dilapidated to the extent of being dangerous for human habitation. All that requires to be considered is the bona fide

intention of the landlord, the age and condition of the building and the financial position of the landlord to demolish and erect new building.

A further judgment relied on by learned counsel for the petitioner himself namely, in P.ORR and Sons (P) Ltd. Vs. Associated Publishers

(Madras) Limited[OVERRULED], , it has been held that the condition of the building need not be in the state of deterioration and crumbling. The

condition must be such that a reasonable and prudent landlord is would regard demolition and reconstruction to be economically more preferable

than to repair the building.

The only other point which requires to be considered is the alleged non-compliance of the undertaking to be given in terms of Section 14(2)(b)

of the Act. According to the petitioner, while Section 14(2)(b) of the Act requires an undertaking that the landlord shall commence work of

demolition of the material portion of the building not later than one month and shall complete before the expiry of three months from the date he

recovers possession of the entire property, the undertaking given by the landlord in the present case was contrary to the statutory requirement. In

the petition, the landlord has stated as follows:-

Therefore, according to learned counsel for the petitioner, the undertaking not being in conformity with the statutory requirement, the petition

for eviction was liable to be dismissed.

Learned counsel for the petitioner relies on a judgment of Ismail, J. as he then was, reported in Alamelu v. Visalakshi, 1978 (2) MLJ 171. The

learned Judge has held that the undertaking with reference to Section 14(2)(b) of the Act must be given before the order can be passed directing

the tenant to put the landlord in possession of the building. Strong reliance is placed on this judgment by learned counsel for the petitioner. For

considering the requirement of giving undertaking in terms of Section 14(1)(b) of the Act, it is necessary to consider the scope of the said provision

which is as follows:-

Recovery of Possession By Landlord For Repairs Or For Reconstruction.

(1)......

(a)......

(b)......

(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 preoccupation 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 at low; or

(b) on the ground specified in clause (b) of sub-section (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 all own.

While it is true that the judgment relied on by learned counsel for the petitioner appears to express in strong terms about the strict compliance

of the said provision, there are other subsequent judgments in which several learned Judges of this Court have expressed differently. In Shamshed

Begum v. D.P. Doraiswami, 1976 (2) MLJ (12), Suryamurthy, J. held that what was required under the provision was that the landlord should be

in a position to demolish and reconstruction and that he should have the necessary resources and also should give an undertaking as required under

the Act. Merely because the undertaking was not given in the petition, need not result in dismissal of the petition. The landlord might have been

called upon to give such an undertaking. In Jameema Beevi v. Easwarlal Patel 1979 (II) MLJ 355, T. Ramaprasada Rao, C.J., held that the mere

absence of a reference in the undertaking that they would demolish the building within a month and complete the reconstruction within three months

from the date of the order would not detract from the same being reasonably understood as an undertaking to demolish the building as per the

provisions of the law.

In Radhakrishnan and Others Vs. Rajasekaran Rajee and Others, , the landlord gave the undertaking in the course of his evidence and T.

Somasundaram, J. held that the deposition of the landlord was sufficient to satisfy the requirement u/s 14(2)(b) of the Act.

Having regard to the facts of the present case, it is unnecessary to analyse the issue deeper as regards the conflicting views as between the

judgment in Alamelu v. Visalakshi 1978 (2) MLJ 171, and the subsequent judgments expressing differently. This is not a case of total absence of

undertaking. This is a case of defective undertaking and the question is whether the right of the landlord to take over the premises for demolition

and reconstruction should be thrown aside merely due to erroneous drafting of the petition. Petitions are drafted by counsel and the mistakes which

they commit especially mistakes which are merely technical could be rectified by giving a proper opportunity to the petitioner. Considering the very

nature of the expressions used in Section 14(2)(b) of the Act, the object and spirit of the provision is to ensure proper enforcement of the ground

on which the landlord secures vacant possession. Section itself makes the time limit elastic and flexible, depending upon the circumstances and the

Rent Controller is vested with the discretion to grant such further period, for reasons to be recorded by him. As pointed out by T. Ramaprasada

Rao, C.J., as mentioned above, the undertaking given by the petitioner in the present case must be reasonably understood as an undertaking within

the meaning of Section 14(2)(b) of the Act. Any provision of law should be interpreted in a manner as would sub-serve justice and the object of

the provision. The legal proceedings should not be made casualty of hyper technical interpretation.

Therefore, on the basis of my finding that there is sufficient evidence to show that the building in question was old and dilapidated enough to be

demolished and reconstruction, I do not find any reason to interfere with the order of the appellate authority. It is however, made clear that the

order of eviction is made subject to the landlord filing a proper affidavit of undertaking before the Rent Controller. The order of eviction will take

effect only on such filing of proper affidavit of undertaking in terms of Section 14(2)(b) of the Act. The land owner will file an affidavit before the

Rent Controller within a period of four weeks from the date of receipt of a copy of this order.

In the result, there are no merits in the above revision and the same is dismissed. No costs.