The civil revision petitioner/appellant/respondent/ tenant has preferred this civil revision petition as against the order dated 21.08.2008 in R.C.A.NO.63 of 2006 passed by the Rent Control Authority viz., the learned Principal Sub Judge, Madurai in confirming the order passed in R.C.O.P.No.38 of 2003 dated 22.6.2006 passed by the learned Rent Controller viz., the learned District Munsif, Madurai Taluk ordering eviction on the ground of demolition and reconstruction of the premises.
2.The deceased respondent/petitioner/landlord filed petition R.C.O.P.No.38 of 2003 before the learned Rent Controller, Madurai viz., learned District Munsif, Madurai Taluk under Sections 10(2)(ii)(a), 10(2)(ii)(b) and 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 against the revision petitioner/tenant praying for an order directing the revision petitioner/tenant to fact and deliver possession of the petition mentioned building with costs. Later on the demise of the respondent/landlord, respondents 2 and 3 have been impleaded as Legal Representatives of the original deceased landlord as per order in I.A.No.201 of 2000 dated 07.03.2001.
3.After contest, the learned Rent Controller has negatived the pleas of Different User and Sub Lease, but ordered eviction on the ground of demolition and reconstruction granting two months time to the revision petitioner/respondent/tenant to vacate the premises.
4.Aggrieved against the orders passed by the learned Rent Controller in R.C.O.P.No.38 of 2003 dated 22.06.2006 the revision petitioner/respondent/tenant has filed an appeal R.C.A.No.63 of 2006 before the learned Appellate Authority viz., Principal Sub Judge, Madurai and the learned Appellate Authority on an overall consideration of appreciation of material evidence on record has passed orders on 21.08.2008 in dismissing the appeal and confirmed the order of the learned Rent Controller passed in R.C.O.P.No.38 of 2003 dated 22.06.2006 and also granted two months time to the revision petitioner/tenant to hand over vacant possession of the petition building to the respondents/landlords.
5.The learned counsel for the revision petitioner/ tenant urges before this Court that the learned Rent Controller ought to have rejected the plea raised by the landlord that the building is an old one and it needs immediate demolition and reconstruction which has been constructed before 60 years is not a correct one in the eye of law and further the landlord has not established the factum of bona fide requirement and moreover, the learned Rent Controller placed reliance on the photos filed by the landlord and also that the learned Appellate Authority has also failed to apply its mind and added further, both the authorities have erred in coming to the conclusion that the building is in a deteriorated condition and in fact the building is very strong even though some plastering in over the wall pealed off will not go to the extent of demolishing the building and that the Commissioner's report, which is a biased one should have been rejected by both the authorities and therefore, prays for allowing the civil revision petition in the interest of justice.
6.Continuing further, the learned counsel for the revision petitioner/tenant that the landlord has already completed his new building as per the approved building plan and hence, there is no necessity to demolish this portion of the building and as far as the plastering in the wall is concerned it will not strength the building and hence, small damages in the plastering need not lead to the demolition of the building and the Advocate/Commissioner and the Engineer have failed to make sufficient tests known to law in testing the strongest of the petition mentioned building and these aspects of the matter have not been looked into by the learned Rent Controller and the learned Appellate Authority and therefore, to prevent miscarriage of justice, this Court has to allow the civil revision petition filed by the revision petitioner/tenant.
7.In support of his contention that the bona fide requirement of the landlord has not been satisfactorily proved in the present case on hand, the learned counsel for the revision petitioner/tenant cites the decision in Kolla Ravindra (alias) K.Ravi V. Susheela Bai 2007 (4) CTC at page 786 wherein it is inter alia observed that 'bona fides can be assessed from available circumstances in each case and that the contact of landlady in refusing to receive rents leading to filing of petition to deposit rents into Court and landlady filing a Second Eviction Petition when one sought for under ground of demolition and reconstruction filed earlier was pending and further, Eviction Petition filed on the ground of subletting and acts of waste and change in user being dismissed are all indicating that bona fides was lacking in requirement and that bona fides have not been satisfactorily proved and that reliance of the Court below on letter of tenant to indicate bona fides of landlady held improper and that the eviction order has been set aside."
8.According to the learned counsel for the revision petitioner/tenant that no plan has been produced and that the landlord has not got approval for staircase construction and that landlord attempted to evict the revision petitioner /tenant from the petition mentioned building with the help of rowdy elements and the revision petitioner/tenant has been forced to file a civil suit and later only the landlord has initiated the RCOP proceedings before the learned Rent Controller and that the learned Rent Controller has granted a relief to the landlord without the same being not asked for by him and in as much as the landlord has not obtained approval for staircase construction from the competent authority there is no reason for him to continue the proceedings before the learned Rent Controller and therefore, prays for allowing the civil revision petition to prevent an aberration of justice.
9.In short, the main contention of the revision petitioner/tenant is that for the purpose of using the next building viz., the staircase, the landlord is seeking the relief, which has not been sought for in the main RCOP proceedings and therefore, this cannot be entertained by the trial Court because of the simple fact that the landlord lacks bona fides and therefore, he is not entitled to seek the relief has prayed for in the RCOP main petition.
10.The learned counsel for the revision petitioner relies on the decision of Hon'ble Supreme Court in Raghunath G.Panhale V. M/s.Changanlal Sundarji and Co. AIR 1999 SC at page 3864 and 3865 wherein it is held as follows: "The Word 'reasonable', connotes that the requirement or need is not fanciful or unreasonable. It cannot be a mere desire. The word 'requirement' coupled with the word reasonable means that it must be something more than a mere desire but need not certainly be a compelling or absolute or dire necessity. A reasonable and bona fide requirement is something in between a mere desire or wish on one hand and a compelling or dire or absolute necessity at the other end. It may be a need in presenti or within reasonable proximity in the future. The use of the word 'bona fide' is an additional requirement under S.13(1)(g) and it means that the requirement must also be honest and not be tainted with any oblique motive."
11.He also cites the decision of Hon'ble Supreme Court in Dattatraya Laxman Kamble V, Abdul Rasul Moulali Kotkune AIR 1999 at 2226 wherein it is held as follows:
"The landlord who seeks eviction of his tenant on ground of bona fide requirement of starting business need not establish that he possesses the know- how necessary for doing the business. If a person wants to start new business of his own it may be to his own advantage if he acquires experience in that line. But to say that any venture of a person in the business field without acquiring past experience reflects lack of his bona fides is a fallacious and unpragmatic approach. Many a business have flourished in this country by leaps and bounds which were started by novice in the field; and many other business ventures have gone haywire despite vast experience to the credit of the propounders. The view that acquisition of sufficient know-how is a pre-condition for even proposing to start any business, if gains approval as a proposition of law, is likely to shatter the initiative of young talents and deter new entrepreneurs from entering any field of business or commercial activity. Experience can be earned even while the business is in progress. It is too pedantic a norm to be formulated that"no experience no venture".
12.Yet another decision of Hon'ble Supreme Court in Pratab Rai Tanwani V. Uttam Chand (2004) 8 SCC at page 490 at 491 is relied on the side of revision petitioner wherein it is inter alia observed that 'the words"reasonable requirement" postulate that there must be an element of need as opposed to a mere desire or wish and however, this distinction should not be employed to make even the genuine need as nothing but a desire and the exercise to be undertaken by judge of facts in this regard.' Moreover, in the aforesaid decision at para 492 it is laid down as follows:
"One of the grounds for eviction contemplated by all the rent control legislations, which otherwise generally lean heavily in favour of the tenants, is the need of the owner landlord to have his own premises, residential or non- residential, for his own use or his own occupation. The expressions employed by different legislations may vary such as "bona fide requirement", "genuine need", "requires reasonably and in good faith", and so on. Whatever be the expression employed, the underlying legislative intent is one.
The words "reasonable requirement" undoubtedly postulate that there must be an element of need as opposed to a mere desire or wish. The distinction between desire and need should doubtless be kept in mind but not so as to make even the genuine need as nothing but a desire.
The concept of bona fide requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant refers to a state of mind prevailing with the landlord. The only way of peeping into the mind of the landlord is an exercise undertaken by the judge of facts by placing himself in the armchair of the landlord and then posing a question to himself-whether in the given facts, substantiated by the landlord, the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bona fide."
13.Contending contra, the learned counsel for the respondents submits that the revision petitioner is in occupation of 150 square feet in the petition mentioned building and that after the death of the landlord who filed RCOP proceedings before the learned Rent Controller his two sons have been impleaded as respondents/ petitioners and that the landlords have proposed to demolish the entire 3000 square feet and a new construction is to be put up and that to an extent of 2800 square feet, the constructions have been completed and that the property is situate within 200 metres from Meenakshi Amman Temple and that the revision petitioner/tenant has filed a civil suit O.S.No.775 of 1995 and the same has been dismissed and that for Commissioner's Report, the revision petitioner has not filed any objection and Ex.P.1 is the approved plan and that the entire building has to be demolished and that the revision petitioner has not said anything about the condition of the building and that the revision petitioner is keeping is portion closed under lock and key and there is no change of stand by the respondents/landlords and this Court sitting in revision cannot re-appreciate facts and unless the orders of both the authorities are perverse, this Court cannot interfere in revision and for a more profitable use landlords can utilize their building and that the age of the building and condition of the building have been proved on the side of landlords/petitioners and that the orders of the both the authorities are a correct one in the eye of law and the same need not be interfered by this Court in revision.
14.To substantiate his contention that both the authorities have concurrently given factual findings based on available material evidence on record and that those findings are an acceptable one in the eye of law. The learned counsel for the respondents/landlords relies on the decision in The President, Communist Party (Rightist) and Vivasayee Sangham, Samayanallore 2006 (5) CTC 231 wherein it is held that 'when the Authorities have concurrently rendered findings based on evidence and such findings are reasonable and legally acceptable, High Court cannot interfere in revisional jurisdiction.' He also seeks in aid of the decision of Hon'ble Supreme Court in Harrington House School V. S.M.Ispahani and another 2002 (2) CTC at page 549 wherein it is held that 'on analyses of judicial precedent it was held that he law that condition of building was determination of decree of urgency warning demolition and reconstruction thereby proving that bonafides of requirements of the landlord was subsequently watered down and age or condition of building was held to be only one of the relevant factors to prove bona fides of landlord and it was laid down that bona fides intention of landlord not to get rid of the tenants and financial position of landlord were also considered as other relevant factors by Constitution Bench in Vijay Singh Case etc.' Moreover, in the aforesaid decision at page 550 it is inter alia held that 'plea of landlord that plan for reconstruction of building though made ready approval not obtained since it is valid for only limited time period and renewal fee is substantial, the plea of the landlord is accepted and that the execution of decree of eviction has been made subject to obtaining sanctioned plan and approval for demolition and reconstruction from local authority and that the tenant permitted to occupy till execution is ordered and that the landlord has been directed to file an undertaking before executing Court as required under Section 14(2)(b) of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960.
15.Continuing further, he cites the decision of Hon'ble Supreme Court in S.Venugopal V. A.Karruppusami and another 2006 (2) CTC 615 wherein the Hon'ble Supreme Court has among other things observed that 'as regards bona fide requirement for demolition and reconstruction it was held that conditions of building is not material when the landlord wants to demolish owned structure in order to build multi-storied building so as to get better return of investment and the landlady is already applied for and obtained planning permission and not giving the details regarding funds for construction will not militate against his claim since raising funds for constructing commercial structure is not difficult as Bank and Financial Institution are willing to advance such funds and that the eviction order was passed upholding plea of landlord.'
16.P.W.1 in his evidence has deposed that his deceased father has filed the R.C.O.P.No.38 of 2003 and that his brother is the first respondent and that the petition building belongs to his deceased father and that the petition mentioned property is situate at Nethaji Road Door No.130 and the same is a room on the western side of the entire property and that the revision petitioner/respondent is a tenant who has taken the room on rent, for running retail snuff business and the present monthly rent Rs.250/- and that the entire building in door No.130 is 100 years old building and that his grand father has purchased the petition mentioned property in auction during the year 1939 and that the petition loosing its strength is in bad condition and that the Nathaji Road is a highly commercial area and that his late father has obtained plan permit from the Corporation which is Ex.P.1 and after correcting the same he has obtained a new plan and that in the petition mentioned building other tenants have vacated and his father died on 16.2.2000 and that his father has executed a registered will dated 23.12.1999 and the certified copy of the said will is Ex.P.12 and that the entire property in Door No.130 has been given to him and his brother and that the entire extent in Door No.130 measures 1560 sq.ft. and that the revision petitioner/tenant is in occupation/ possession of 180 sq.ft. and to demolish the portion occupied by the revision petitioner/tenant a sum of Rs.90,000/- will have to be expanded and for constructing rest of the portion (other than the portion in possession of revision petitioner) a sum of Rs.10,00,000/- has been in regard to and for constructing a new building after incurring an expense of Rs.90,000/- he has the wherewithal and that his brother Singaravel annual income is Rs.3,00,000/- and the tax receipts are Ex.P.13 and P.14 and that he has a house valued at Rs.25,00,000/- at Kamala 2nd Street Sokkikulam and the house tax receipt is Ex.P.15 and his brother owns a house at Madurai Sarojini Street valued at Rs.25,00,000/- for which the tax receipt is Ex.P.16 and therefore, to demolish and reconstruct the petition mentioned building he has sufficient means.
17.It is the further evidence of P.W.1 in his cross examination that they have constructed a building contrary to the plan-Ex.P.1 and for entire extent including the constructed portion in Door No.130 they have submitted a new plan and that they have not filed the said plan before Court and as per Ex.B.1-plan since they can construct a building after leaving the revision petitioner/respondent's place they have constructed any other portion.
18.P.W.2-Engineer in Ex.C.3-stability report dated 15.12.2009 has inter alia stated that 'the portion of the building in Door No.130 Nethaji Road, Madurai is occupied by a snuff shop and it is a single room unit measuring 17'9" x 10'3" as per Ex.C.2- survey sketch and that the building has ground floor only and that the building is roofed with Madras Terraced using country wood rafters and the ceiling height of the building is 11'0" etc. and that the building is built with bricks using lime mortar and lime plastered and out of the six rafters provided in the Madras terraced roof, the first one is from the western side which is sagged and in a deteriorated condition and the second rafters is sagged 1/2" (inch) from the roof and that the third, fourth and sixth rafters have also sagged and in a damage condition and except the rafter No.5 all are in damaged condition and that the ceiling plastering is pealed of from the roof between first and second rafter and in the inner side of the northern wall there are lot of dampnesses are seen and that the entire wall plastering has become weak and a large dampness is seen in this wall upto 4' height from the roof and there is a vertical crack in this wall and the plastering is pealed of in some places upto 7' height from the floor and the rafters of the loft is also come down and a hole is seen with bricks and a major vertical crack is seen in the northern east corner and it goes through out the wall etc.
19.Indeed, a perusal of Ex.C.3- stability report of the P.W.2-Engineer goes to show that the age of the building is more than 70 years and the life span of the lime mortar building is 70 years and that the building has outlived its age and also it has lost its stability.
20.Apart from the above, it is not out of place to point out that in Ex.C.3 stability report it is clearly mentioned that 'in the eastern wall inner side there are lot of surface cracks are seen and in the middle portion of the wall there is a brick pillar supporting the roof and that a major crack is developed in between the pillar and the wall and the pillar is also in a damaged condition and that the plastering is in a weak condition and it is turned black in colour about 3' height from the floor and in the inner side of the western wall, the plastering came down and it is pealed of from the roof and the lime mortar and the bricks are seen and that there is a pillar in the middle portion of the wall and a vertical crack is seen in between the pillar and the wall and the pillar is pealed of in both the sides of the pillar near the roof etc. and in the north-west corner the plastering in the roof has come down and it is a very poor condition and the loft has been removed from the wall and a horizontal hole is seen and that all the wall plastering near the pillars is pealed of and the lime mortar is seen and further the entire wall plastering has become weak and it is turned to black in colour in lot of places and the southern wall is also in a same condition and that in the outer portion of the southern wall the plastering has become weak and it is turned to black in colour in many places and the lot of dampness are seen and there is a horizontal crack above the door and the north and eastern outer walls are plastered recently.
21.Moreover, in the stability report of P.W.2 viz., C-3 it is candidly mentioned that there is no weathering tiles over the roof only cement flooring is done and it is also in a damaged condition and that the western parapet is damaged totally and plastering is become weak and it is black in colour and in southern parapet, there are lot of vertical cracks are seen and the plastering has become weak and the bricks are seen with lime mortar in the damaged area and the southern parapet is built with cement grills upto 4 .' (feet) height and it is also in a very poor condition and there is no parapet in the north and the eastern sides, for this portion and the doors and the roof members are damaged and in a deteriorated condition.
22.In the instant case on hand, the Ex.C-1 Commissioner's report assumes a significant role. The Commissioner in his report Ex.C.1 has among other things stated that the building is in a deteriorated condition. In his report he has vividly mentioned that the petition mentioned property roof is supported by two brick pillars and in those pillars also plasterings have pealed out and the northern wall of the building is seemed wet and the entire plastering of the wall is very weak and they peal off even by touch of hand and a major vertical crack is visible at the north eastern corner, which runs through out the wall and the eastern inner wall is seemed with surface cracks all over and that a major crack is visible at the pillar and the cracks extends to the said wall and the bricks are visible and in the inner western wall the plasterings are in damaged condition and a brick pillar is found supporting the roof etc.
23.R.W.1/tenant in his evidence has among other things stated that he has taken the room measuring 22 x 16 ft at Door No.130 Nethaji road on the western side on a monthly rent and that he does not know as to whether the petition mentioned property has been purchased by the respondent's father in Court auctioning during the year 1939 and prior to his carrying out repairs in the petition mentioned property building the rain water will seep in and thereafter, he has repaired the same he has not filed any document and it is correct to state that except his shop at Door No.31 rest of the shops have been demolished and newly constructed.
24.It is to be pointed out that the term 'Demolition' in Section 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 has not been defined under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 nor is there any definition as to what is meant by a new building, in the considered opinion of this Court. As a mater of fact, the old building which has been let out, by an act of demolition will come to an end totally so as to amount to substantially ceasing to exist. If the landlords come to Court with a plea that the building is an old and dilapidated one then they must prove it. One cannot ignore a very vital fact that the landlords will be entitled to an order of eviction under Section 14(1) (b) of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, the age of the building and dilapidated conditions of the buildings are not a sine qua non for such eviction. Generally speaking if the roof of the premises is to be demolished and a staircase is to be put up separately retaining the walls then it will amount to demolition. A demolition need not be of the entire ground floor or of the entire first floor. However, the demolition can be in a portion of the ground floor or in a portion of the first floor. In such case, the building after the fresh work is completed will include partly of the old and partly of the new building. A fresh work may be outside in the exterior or inside in the interior. If the fresh work is undertaken though any portion of the building and in the interior is such that the completed work requirements/ involves demolition and also substantial structural alterations so as to change the identity and give a new look altogether, Section 14(1)(b) will apply to such a case. No wonder, the term 'rebuilding', 'reconstruction' and 'erecting a new building' do have the same meaning. It is not out of place to make a mention that though the building is not intended to be erected on the entire portion of the space demolished, the requirement of the Section is satisfied if a substantial portion has been used for erection of the building.
25.It is to be borne in mind that it is not essential that every portion of the building has to be razed to the ground in order to made the requirement of Section 14(1)(b) of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. Main retention of a common wall will not disqualified the landlord from putting up a new building. At this stage, this Court points out that even though the wall is common between the adjacent owners of the buildings, still it is possible to demolish and reconstruct. The acid test is whether is it not restricting or remoulding or erecting a new building. Original building loosing its separate identity completely will amount to demolition and reconstruction, in the considered opinion of this Court.
26.Really speaking, the demolition is to obliterate substantially the old building and the construction must bring into being a new building. After all, Section 14(1) (b) of the Tamil Nadu Buildings (Lease and Rent Control) Act requires that the building should be bona fide required for immediate purpose of demolishing it with a view to erecting a new building. The desire of the landlord to demolish and rebuild should be honestly entertained by him and it should not be a ruse/devise to affect a tenant. Added further, the bona fides under Section 14 of the Tamil Nadu Buildings (Lease and Rent Control) Act should not be attested by stringent standards when an application for eviction is filed under this provision. The words 'bonafides' includes the means of the landlord for reconstruction of the building and other steps taken by him in that regard. The condition of the building is not a relevant consideration for determination of such bona fide.
27.It is relevant to make a mention that to maintain a petition under Section 14(1) (b) of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, a landlord must satisfy three things:
(1) bona fide intention, far from the main aim of getting rid of the tenants; (2) the age and condition of the building; and (3) the financial position to demolish and reconstruct.
28.It is also a well settled position that a building need not be in a dangerous state of affairs or in a dilapidated condition for allowing a petition under this Section. The existing state of affairs of the building, far from being totally irrelevant is a factor in considering the bona fide requirement under Section 14(1) (b) of the Act.
29.Admittedly, no Court can prescribe any limit in regard to the age and condition of the building. But it is only a factor which has to be taken into consideration along with other factors in testing the bona fides of the landlord. It is sufficient to establish that the building is an old one and the same need not be gone into in detail.
30.This Court points out the decision of this Court Mrs.Jaype Electronics (P) Limited, Chennai V. Appasamy (2000) 2 MLJ 551 wherein it is held that 'for eviction under Section 14(1)(b) of the Act,it is not necessary that building should be in dangerous condition and unsuitable for human habitation.'
31.In Meyyappa Chettiar and another V. K.N.Balakrishnan and another 1984 I MLJ at page 314 this Court has held as follows:
"In cases where a person is the absolute owner of all the four walls can certainly be demolished and reconstructed. In a case like the present one where one wall is a common wall, it may be that one common owner of that wall, it may be that one common owner of that wall may not be entitled to pull down that wall in its entirety as it would affect the rights of the neighbouring co-owner. But if it is still possible to undertake demolition and reconstruction retaining such a common wall comprised in a building as defined under the Act, it cannot be stated that in such a case there is no demolition and reconstruction at all. Merely by the retention of a common wall, it cannot be stated that the old building in this case had not been substantially obliterated or by the proposed reconstruction a new building could not be brought into existence."
32.As far as the present case is concerned, the revision petitioner/tenant has not filed his objections to the commissioner's report. In the main RCOP petition R.C.O.P.No.38 of 2003 (originally R.C.O.P.No.351 of 1996) the respondents' deceased father as petitioner has inter alia averred that 'the entire building had been constructed about 60 years ago, a madras terrace building and that the walls are made of brick in line mortar with lime plasterings and that the building due to old age, has developed cracks in several places and that the wooden materials have worn out and that the building has become very weak and so it is to be demolished and a new building has to be constructed in its place and such demolition and reconstruction is also necessary in view of the old residential type of structure in a locality which has become a thick commercial centre of Madurai town and that the demolition and reconstruction is necessary for paying the building to better use for which he has made all arrangements and has obtained building permit by submitting building plan and that he has vacated the tenants in the rear portion of the building and that he has informed the revision petitioner about his requirement of the building for demolition and reconstruction and requested him to vacate and hand over possession of the building to him etc.
33.The revision petitioner/tenant in his counter has stated that 'the building till date is in a strong condition and there is no necessity to demolish it and that the respondents have demolished the existing building and reconstructed a new building and now the portion which is in his possession and enjoyment is in exercise of their requirement and that it will construct multi- storied building provided the requirement more than what is required by the respondents and that the petition is not applicable, on the ground that the building has been totally demolished and a new building has been erected in that place and thereby all the provisions of the Rent Control Act ceases to apply.
34.On the side of respondents/landlords before the learned Rent Controller Ex.P.1-approved plan has been marked. In Ex.P.1-plan it is quite evident that the same relates to the proposed construction of shop and store building in Door No.130, T.S.No.1143/1,2 and 3, C ward, Dindigul Road, Madurai. In the R.C.O.P. petition No.38 of 2003, the description of the building is described as 'in Madurai City, Nethaji Road, Ward No.13, Door No.130- the front western portion of the entire building, measuring 9 and ft. east and west and 16 ft. north and south with state boundaries thereto. Significantly, in Ex.P.1-approved plan in the reference column it is mentioned as follows:
1.Area of the site 1554 1554 sq.ft. 144.49 sq.ft.
2.Area of the PRO. Constn. G. floor 1044 sq.ft. 97.08 sq.m.
3.Area of the PRO. Constn. F. floor 1044 sq.ft. 97.08 sq.m.
4.Area of the open space 510 sq.ft. 47.41 sq.ft.
35.Ex.P.1-plan is the true copy of the original one and the same has been signed by Assistant Commissioner, South zone Corporation of Madurai. It appears that Ex.P.1-plan has been verified with the original approved in Ref.No. 2/28 dated 30.04.1997 and the same has been signed by Assistant Engineer, Madurai Corporation. The respondents/landlords have marked the certified copy of death certificate in respect of their father Dhanasekarapandian (who initiated RCOP proceedings originally). Ex.P.12 is the certified copy of the Will dated 23.12.1999 executed by deceased Dhanasekarapandian (father of the present respondents/ landlords), to and in favour of their sons viz., respondents /landlords. A recital of Ex.P.12-will shows that the entire property viz., Door No.130 at Nethaji Road has been given to the present respondents/landlords. Ex.P.13 is the Form No.2D IT return of D.ManoharnRaj (second respondent/landlord) for the assessment year 2002-2003. In Ex.P.13 the total income is mentioned as Rs.3,04,748/-. The agricultural income is mentioned as Rs.75,788/-. The income claimed to be exempted from income tax is mentioned as Rs.2,75,960/-. Lastly the balance tax/refundable is mentioned as Rs.1734/-. Likewise Ex.P.14 is the Form No.2D IT return in respect of D.Singaravel (first respondent/landlord) for the assessment year 2002-2003. In Ex.P.14 the total income is mentioned as Rs.3,68,826/-. The agricultural income is mentioned as Rs.75,788/-. Lastly, the self assessment tax paid is mentioned as Rs.4887/-.
36.From Ex.P.13 and P.14 income tax returns of the respondents/landlords, it is quite clear that they do have the withal to demolish and reconstruct the petition mentioned building. In view of the Ex.C.3-stability report submitted by P.W.2 Engineer wherein he has categorically mentioned that the age of the petition building is more than 70 years old and the life span of the lime mortar is only 70 years etc., this Court comes to the conclusion that the age of the petition building is more than 70 years and there is no impediment in recording so.
37.In short, in the instant case on hand, this Court opines that the condition of the petition mentioned building is such that it requires immediate demolition and reconstruction, as seen from the Ex.C.3-report furnished by P.W.2-Engineer. Also in view of the specific evidence of P.W.1 that if the petition mentioned building is demolished in entirety the same can be utilised in good manner, this Court opines that the intention of the respondents/landlords for demolition and reconstruction is proved to be genuine and not a suspicious or a spurious one.
38.This Court in the interest of justice pertinently points out that the non-production of sanctioned plan will not by itself disentitle the landlords to get an eviction order under Section 14(1) (b) of the Tamil Nadu Buildings (Lease and Rent Control) Act. Even for want of sanctioned plan or lack of preparation for the work of demolition and reconstruction by itself will not negative the bona fides of the landlords.
39.In the decision in Messrs.Panchammal Narayan Shenoy Vs. Basthi Venkatesha Shenoy 1970 1 SCC at page 499 and 500 the Hon'ble Supreme Court has held as follows:
"What is necessary under that clause is that the landlord must satisfy the Court that he reasonably and bona fide requires the premises for the immediate purpose of demolishing it and the demolition is for the purpose of erecting a new building in the place of the old one. No doubt, as to whether the landlord's requirement is reasonable and bona fide has to be judged by the surrounding circumstances, which will include his means for reconstruction of the building, the other steps taken by him in that regard.
(ii)In considering the reasonable and bona fide requirement of the landlord under this clause, the desire of the landlord to put the property to a more profitable use after demolition and reconstruction is also a factor that may be taken into account in favour of the landlord. It is not necessary that the landlord should go further and establish under this clause that the condition of the building is such that requires immediate demolition. That the condition of the property may be such which requires immediate demolition is emphasised in clause(k) of the proviso. When such a specific provisions has been made in clause (k), the condition of the building cannot come into the picture nor could it have been dealt with again in clause (j). So the requirement under clause (j) is that of the landlord and cannot have any reference to the building."
40.In Mohammed Gani and 2 others Vs S.Rathinavel and 2 others 1994 2 L.W. at page 472 this Court has observed that "There could be no doubt that the commissioner's report could be received as evidence. This principle is also laid down in Order 26, Rule 10 C.P.C. Therefore, the Authorities below are quite justified in relying on Commissioner's report to come to the conclusion regarding the condition of the building. There is clinching evidence to show that the building in question, is atleast 60 to 70 years old. No doubt, age is not a vital factor, if really the condition of the building otherwise warrants demolition and reconstruction. It has also been held so in 1991-1-M.L.J.351, Referred to Paras 5, 5A."
41.In the light of detailed discussions and on consideration of available materials on record and on an overall assessment of the facts and circumstances of the case in an integral fashion, this Court comes to the conclusion that the petition building is required by the respondents/landlords in a bona fide manner for the immediate purpose of demolishing it etc. and in that view of the matter, the Civil Revision Petition fails and resultantly, the same is dismissed.
42.Inasmuch as the P.W.1 (second respondent/landlord) has stated in his evidence categorically that they have constructed the building contrary to the Ex.P.1-approved plan and that he has not filed the new plan before the learned Rent Controller (in regard to the entire construction and the constructed portion in Door NO.130) and further that they have constructed the building other than the place occupied by the revision petitioner/tenant, this Court, as a matter of Prudence, Equity, Justice and Good Conscience, directs the respondents/landlords that they shall submit the new plan sanctioned by the local authority and only then the decree for eviction shall be available for execution and also that they shall produce the approved or sanctioned plan before the concerned executing Court, whereupon the executing Court shall allow a reasonable time to the tenant for vacating the property and delivering possession to the respondents/landlords/decree holders. Till then, the revision petitioner/tenant is directed to pay the monthly rent, electricity charges for use and occupation of the petition mentioned building as usual. While producing the sanctioned or approved plan, the respondents/landlords are also directed to file an undertaking before the executing Court as per clause (b) of Sub-section 2 of Section 14 of the Tamil Nadu Buildings (Lease and Rent Control) Act. Having regard to the facts and circumstances of the case, there shall be no order as to costs. Connected miscellaneous petitions are closed.
Sgl To
1.The Principal Sub Judge, Madurai.
2.The District Munsif, Madurai Taluk.