Prayer in C.R.P.(NPD)No.2074 of 2009: Civil Revision Petition filed under Section 25(1) of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, against the order dated 10.06.2009 made in R.C.A.No.472 of 2006 on the file of the Seventh Judge, Court of Small Causes, Chennai confirming the order of eviction dated 13.03.2006 made in R.C.O.P.No.568 of 2005 on the file of the Fifteenth Judge, Court of Small Causes, Chennai.
Prayer in C.R.P.(NPD)No.2075 of 2009: Civil Revision Petition filed under Section 25(1) of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, against the order dated 10.06.2009 made in M.P.No.905 of 2008 in R.C.A.No.472 of 2006 on the file of the Seventh Judge, Court of Small Causes, Chennai.
For Petitioner : Mr.R.Nadanasabapathy in both C.R.Ps.
For Respondent : Mr.Ashok Menon in both C.R.Ps.
* * * C O M M O N O R D E R In view of the interconnectivity of the issue involved in these cases, a common order is being passed.
2. In the eviction petition filed by the landlord under Section 14 (1) (b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, the following allegations are found:
2.1. The petitioner is the absolute owner of the demised premises which is situated at the corner of T.S.Lakshmanan Street, Anna Main Road in M.G.R. Nager, Chennai. The said building consists of three shop portions abutting Anna Main Road, in which, the residential portion is there where the petitioner and his family are residing. The respondent is the tenant in one of the shop portions in the building which is a corner shop and single unit. It is for non-residential purpose and he is carrying on business under the name and style of "Pandyan Stores" and paying a sum of Rs.1,900/- per month as rent.
2.2. The demised premises is in a very dilapidated condition. The walls are full of deep cracks. The flooring is also cracked in several places and also caved in certain portions. The roofing is in a state of disrepair and even when it is drizzling, the roof leaks very badly. The building is forty years old and practically eye-soar looking very shabby. The walls in that portion have crumbled in many places. A substantial portion of the walls was made of mud and is greatly damaged. No amount of repair work can salvage the portion occupied by both the parties. The only alternative left to the petitioner is to demolish the entire premises including all the shops at the earliest possible to put up a new super-structure.
2.3. The petitioner has obtained a plan from the Corporation of Chennai for demolition and reconstruction. He has also possessed of sufficient funds for the said purpose and the building is in dilapidated condition for more than three years. The petitioner asked the respondent on numerous occasions to vacate the demised premise but in vain. The respondent filed a suit in O.S.No.4291 of 2004, on the file of the City Civil Court, Chennai, for permanent injunction restraining the petitioner from demolishing the demised premises without evicting him by due process of law. The petitioner's family consists of his wife and three sons, by name, Manickchand, Anilkumar and Parveenkumar. All of them are married and have children. The three sons are doing business separately in rented shops. This petitioner does not own any other building either residential or non-residential in the city of Chennai.
2.4. The petitioner undertakes to substantially commence the work of demolishing any material portion of the building in the demised premises within one month from the date on which the possession is delivered to him and to complete the work within three months. The petitioner bona fide requires the demised premises for demolition and reconstruction. Hence, the order of eviction may be passed.
3. In the counter filed by the tenant, the following are stated:
3.1. It is false to state that the building is in a very dilapidated condition. It is also not true to state that roofing is in a state of dis-repair and that even when drizzling the roof leaks badly.
3.2. The land in which the petition building has been constructed is not a Patta land. Therefore, permission for reconstruction will not be given either by Chennai Metropolitan Development Authority or by Chennai Corporation. It is denied that the building is forty years old. It was constructed only in 1984. This respondent was the person who occupied the shop as a first tenant immediately after construction in 1984.
3.3. The petitioner could not have obtained a sanction from the Corporation of Chennai for demolition and reconstruction. If he has obtained any such plan, it can only be by way of false means and suppressing the material facts. On 23.12.2002, this respondents Advocate sent a reply notice to the Advocate for the petitioner to send within one week from the date of receipt of that reply notice, a true xerox copy of the planing permission given by the Corporation of Chennai. So far, he has not sent any such copy even though the reply notice was received. It is incorrect to state that the petitioner is having sufficient funds for demolition and reconstruction.
3.4. It is false to state that the building is in dilapidated condition for more than three years. The petitioner sent a letter directly to the counsel for the respondent stating as "as per Corporation's instruction, I am going to demolish the building within ten days from today." Only then, the respondent filed a suit and the same was decreed as prayed for on 06.10.2004. The petition lacks bona fides. The petitioner cut off electricity supply to the shops and after a Police complaint only he restored the electricity supply. Just one shop away from the respondent's shop was rented out to Valarmathi Rajendran. It was originally let out to one Chandraprakash Jain. After he vacated a few months ago, the said shop has been occupied by the petitioner's son, namely, Anilkumar who is carrying on business under the name and style of Anil Auto Consultant. If the whole building is in dangerous condition, the petitioner would not have allowed his son to carry on the business in one shop portion in the same building.
3.5. It is not correct to state that the petitioner's three sons are doing business separately in rental shops. It is equally false to allege that the petitioner does not own any other building either residential or non-residential. The petition has been filed only on the ground of demolition and reconstruction and not on any other ground.
4. The learned Rent Controller, XV Judge of the Small Causes Court, Chennai, allowed the application after scrutiny of the materials granting two months time for vacating the premises. This petitioner preferred an appeal in R.C.A.No.472 of 2006, on the file of the VII Judge, Small Causes Court, Chennai. Pending the hearing of the appeal, he filed an application in M.P.No.905 of 2008 under Order 41, Rule 27 CPC to receive two documents as additional evidence in the appeal. Both the appeal and Miscellaneous Petition were heard simultaneously and in the appeal the eviction order passed by the Rent Controller was confirmed granting one month time for delivery of premises. Against the Judgment, C.R.P.(NPD) No.2074 of 2009 has been filed. M.P.No.905 of 2008 was dismissed by the Appellate Authority, against which, C.R.P.(NPD)No.2075 is preferred. The Appellate Authority has passed a common order.
5. It is the contention of the respondent/landlord that the tenanted premises is in dilapidated condition and it is old one, that the walls, roof and flooring are in a bad condition and hence, the building requires immediate demolition. In order to show the condition of the building, the landlord produced Exs.P28, 31 and 32 Engineer's Report and sketch, Exs.P29 and 30 photographs and negatives to portray the existing condition of the building. The Engineer has also been examined as P.W.4. The learned Rent Controller recorded findings to the effect that even though the photographs produced by the Engineer examined by the landlord do not show the immediate necessity for demolition, the photographs filed by the tenant clearly shows the cracks. As per P.W.4, the building is in a dilapidated condition, which requires immediate demolition, otherwise it may crumble down endangering the lives of the inmates of the petition premises.
6. A combined effect of the above said materials would show that the building is in a dilapidated condition. It is well settled position of law that if a landlord intends to demolish and reconstruct a tenanted premises, he need not establish that the building is in a dangerous condition. A Constitution Bench of the Supreme Court in the case of Vijay Sigh etc., v. Vijayalakshmi Ammal reported in AIR 1997 Supreme Court 47 has formulated the following principles to reach a conclusion in this regard, before ascertaining the bona fide intention of the landlord:-
For granting permission under Section 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.
7. As far as the age of the building is concerned, the Authorities below have found that it is about twenty years. It is stated that the premises is in the corner in a junction of two main roads and the landlord proposes to augment the revenue for the family by reconstructing and giving the same to his sons. In order to assess the condition of the building, the evidence of Engineer is available. He deposes that a crack is found in the foundation wall, that there is a likelihood of leakage during rainy season and he recommended to demolish the building since it is in damaged condition.
8. Mr.R.Nadanasabapathy, learned counsel appearing for the petitioner would draw attention of this Court to a decision of this Court reported in 1995 (1) CTC 304 (Ameeruddin and four others v. Premakumari) in which it is held that in assessing the bona fides of landlord, the existing condition and age of the building and the preparations made by the landlord by way of getting the plan for construction of new building from the Municipal Corporation are relevant factors to be considered. In a decision reported in 1998 (3) MLJ 741 (M/s.M.M.Jaffar and Co., Coimbatore and others v. M/s.Coimbatore Bearing Stores, Proprietor, T.S.Dayalan and another), it is held that to arrive at a decision, whether the building is in such a condition that it needs reconstruction, besides the actual physical condition of the building, various other circumstances, namely, where the building is situated, the nature of development in the said area, etc., should be taken into account. It transpires from the evidence in the case on hand, that the demised premises are non residential shops and it is in the midst of a commercial area. It is viable for improvement in the business activities. In 2001 (1) MLJ 541 Krishnan and others v. K.L.N.Raghavan this Court has held that for the requirement for demolition and reconstruction, the building need not be in a dilapidated condition and age and condition of the building have to be taken into account.
9. From the above views expressed by this Court, the age and condition of the tenanted premises are not criteria for ordering eviction. The other circumstances also have to be borne in mind in order to discern bona fide intention of the landlord.
10. Much was said about the non-production of the approved building plan in the name of the respondent. He has produced an approved plan Ex.P23 issued by the Chennai Corporation in the name of his vendor. This petitioner assails Ex.P23 very much by stating that the respondent has not taken any steps to obtain plan, that the site upon which the premises are constructed is not a Patta land and hence, it is impossible for the respondent to get the approved construction plan from the authorities concerned. It is admitted by the respondent that he has no Patta for the site upon which the premises is constructed.
11. In this context, the learned counsel appearing for the petitioner would contend that Patta is very much required for getting the approved construction plan from Chennai Corporation. The petitioner's Advocate gave a letter to the Commissioner of Corporation of Chennai on 06.11.2008 under Right to Information Act requesting the said authority to give a reply to a query, whether building permission will be given to erect a new building in the land for which there is no Patta in M.G.R.Nagar, Chennai-600 078. For this letter, the Zonal Officer of the Chennai Corporation issued reply on 01.12.2008 stating that for sanctioning a building plan at M.G.R.Nager, Patta/PLR Extract/FMB sketch and necessary documents are required. Both the above said letter and the reply were sought to be received as additional evidence on behalf of the petitioner before the Appellate Authority in M.P.No.905 of 2008, but the same suffered dismissal. The learned counsel appearing for the petitioner also indicates the relevant Sections in the Chennai City Municipal Corporation Act, 1999, in which section 234 is pertinent which reads as follows:-
234.Application to construct or re-construct building.-(1) If any person intends to construct or re-construct a building, he shall send to the Commissioner-
(a) an application in writing for approval of the site together with a site plan of the land, and
(b) an application in writing for permission to execute the work together with a ground-plan, elevations and sections of the building and a specification of the work.
[Explanation.- Building in this sub-section shall include a wall or fence of whatever height bounding or abutting on any public street.]
2. Every document furnished under sub-section (1) shall contain such particulars and be prepared in such manner as my be required under rules or by-laws.
12. In this provision, it is not stressed the production of Patta for approval of building plan. Even in the reply sent by the authority, it has been mentioned as, "Patta/PLR Extract/FMB sketch and necessary documents are required." It does not reveal a fact that all the three documents such as Patta, PLR Extract and FMB sketch are required but it might be, any one of them is required along with other necessary documents. In this connection, it is to be construed, in the light of the above said provision, Section 234 of the Act, that any of the records in three categories, namely, Patta or PLR Extract or FMB sketch is required for approval. Section 234(1)(a) calls for a site plan of the land and not Patta in categorical terms. Had the patta been an essential requirement, approved plan might not have been issued to the vendor of the respondent. Hence, it is futile to contend that proof of Patta is inevitable for the authority to approve the construction plan. In this regard, this Court does not find any infirmity in the order dismissing the M.P.No.905 of 2008, turning down the claim of this petitioner to receive additional evidence.
13. In view of this Court, the additional evidence is not necessary, in view of Section 234 of the Act, which is in unequivocal terms. In the case of M/s.M.M.Jaffar and Company (supra) the learned Judge has expressed the opinion, which was already formed by this Court that, mere non-production of the plan at the stage is not sufficient to reject the vacation petition, if the landlords have established their bona fide intention and that the Court will have to see whether the landlord came to the Court with clean hands with a good intention that he wants to demolish and reconstruct the building, for the said purpose it would be sufficient if the plan and licence are filed either at the time of evidence or at the time of execution and the learned Rent Controller, can insist that before the tenant is dispossessed, the landlord should produce a plan and licence.
14. Earlier, the same view was taken in 1995 2 LW 253, (R.Ramadoss and another v. Syed Shababudeen) cited by the learned counsel for the respondent Mr.Ashok Menon, wherein on the strength of the decision in 1994 LW 102 (S.Balasubramaniam v. Gulab Jan) it is held that the non-production of the sanctioned plan by itself would not disentitle the landlord to get an order of eviction under
Section 14(1)(b) of the Act.
15. I respectfully agree with the earlier views of this Court. The production of approved construction plan is not sine quo non for passing the order of eviction and the same could be filed even in the execution proceedings before the order of delivery was made.
16. As regards financial position of the landlord, he has produced Ex.P1 to P23 to show that his family is in affluent circumstances. He has stated in his evidence that Ex.P1 shows value of his property as Rs.6,21,939/- that as per Ex.P2 the turn over for his wife was Rs.3,63,000/-, that as per Ex.P5 to P11 his sons are also in sound financial position. There is no room to reject these records. A combined effect of the above said documents would show that the landlord is possessing adequate funds for demolition and reconstruction. There is no contra evidence on the side of the petitioner. In view of the above said findings, it is held that the landlord bona fide needs the building for demolition and reconstruction.
17. As regards the requirement of the building for the own occupation of the landlord, it is disputed by the petitioner herein that the only ground in the revision petition is that the premises is required for demolition and reconstruction. The effect of this defence may be that relevant provision of the Act is not mentioned in the petition for eviction. But the petition contained sufficient pleadings for the ground of own occupation for the family members. Two sons of the respondent Manickchand and Parveenkumar have been examined as P.W.2 and P.W.3 to show about their proposal to run their business. Merely because the provision is not quoted in the petition, in the presence of necessary pleadings therein, it cannot be stated that the petition is not maintainable on this score. P.W.1 has stated that one son is dealing with Auto Consultant and two other sons are engaged in Pawn Broker business. It is evident from Exs.P21, 22 and 25 Pawn Broker licences. Even though this petitioner has stated in his counter that one of the sons of the respondent has occupied a portion of the building, in case of demolition and reconstruction, he may vacate and leave the same for demolition.
18. The learned counsel appearing for the petitioner garnered support from a decision of the Supreme Court reported in 2002 (2) CTC 628 (A.V.G.P.Chettiar and Sons and others v. T.Palanisamy Gounder) in which he urges the following portion as relevant:
The High Courts reasoning was far removed from the pleadings of the respondent. The respondent had claimed that Gowthaman was the absolute owner of the suit property and that such absolute interest had been purchased by the respondent. Given this pleading the respondent could not be allowed to set up a different case and take shelter behind the definition of landlord in the Act. The definition of landlord is an enabling provision in the sense that it enables persons who are not the owners to ask for eviction under the Act. But it does not mean that a person who has claimed to be the landlord qua owner can jettison his case as pleaded in his eviction petition and establish his claim on the basis that he was otherwise entitled to claim as landlord of the suit premises. As held in M/s.Trojan & Co. v. RM N.N.Nagappa Chettiar, AIR 1953 SC 235, p.22 It is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found.
19. The situation in this case is otherwise, there is no dispute as to absolute owner or between co-owners in the property and this Court does not render any finding as to the facts which are not covered by the pleadings. He also cites AIR 2000 SCW 2357 (K.M.Abdul Razzak v. Damodharan) in which it is held that it is not permissible for the High Court in exercise of its revisional power to reassess or re-evaluate the evidence on record afresh as an Appellate Court and come to a different finding contrary to the finding recorded by the Court below. The Apex Court concluded that the case be remitted back to the Appellate Authority to decide the appeal in accordance with law. However, on a careful scrutiny of the materials, this Court does not find any ground to remand the matter to the Appellate Authority.
20. The intention on the part of the landlord for demolition and reconstruction has been established as bona fide. Further, the requirement of the tenanted premises for the family members of the landlord has also been found to be genuine. Hence, this Court does not find any valid ground to disturb the concurrent findings rendered by the Authorities below, which have to be confirmed and they are accordingly confirmed. These Civil Revision Petitions have to fail.
21. In fine, both the Civil Revision Petitions are dismissed with costs. Consequently, connected miscellaneous petition is also dismissed. Time for delivery is four months.
srm To
1.The Seventh Judge, Court of Small Causes, Chennai.
2.The Fifteenth Judge, Court of Small Causes, Chennai