Shakeelulr
Rahman Vs. Syed Mehdi Ispahani [2002] Insc 502 (29 November 2002)
Syed
Shah Mohammed Quadri & Arijit Pasayat. Arijit Pasayat, J.
Leave
granted.
A suit
for eviction by the appellant-tenant filed by the respondent- landlord on the
ground available under Section 14(1)(b) of the Tamil Nadu Building (Lease and Rent Control) Act, 1960 (hereinafter referred to
as 'the Act') was dismissed by the Rent Controller and the Appellate Authority.
However,
the High Court exercising revisional jurisdiction allowed the prayer for
eviction. Feeling aggrieved thereby, the tenant has filed this appeal by
special leave.
In a
nutshell, the factual position about which there is not much controversy, is as
follows :- The suit premises consist of a ground floor and first floor
measuring about 1ground and 277 sq. feet. Landlord-respondent, as set out in
the application R.C.O.P. No. 2424 of 1988 on the file of Court of Small Causes
at Madras claimed that the eviction was required for demolition and
reconstruction of the building bearing Door no.5, Clemens Road, Chennai.
It was
specifically pleaded that the property is situated in a residential-cum-
commercial locality wherein multi-storied buildings have been erected and in
order to utilize the property and earn better income he has decided to demolish
the said building completely and desired to construct a multi- storied in the
property. The appellant-tenant disputed the stand of the respondent-landlord
and pleaded that the building is in a sound condition and does not require
demolition at all. The Rent Controller rejected the respondent-landlord's
prayer, accepting appellant-tenant's stand. Reliance was placed on this Court's
decision in P. Orr and Sons (P) Ltd. vs. Associated Publishers (Madras) Limited
(1991(1) SCC 301), to hold that it was mandatory to verify whether the building
in question requires immediate demolition and reconstruction. Though he
accepted the respondent-landlord's case that the new building shall fetch more
income and he has sufficient means to put up the construction, but these facts
were held to be not much of consequence. Appellate Authority concurred with the
views of Rent Controller. On being approached for revision, learned Single
Judge held that notwithstanding absence of pleadings regarding age and
condition of the building, material on record clearly established that the
building was old and required demolition. Additionally it was held that the
importance of the area where the building is situated has undergone a sea
change and there was all around development. Reference was made to the evidence
of witnesses and documents on record which established that an agreement (P-11)
had been executed for demolition of the building in question and two others
owned by landlord's mother and brother, and for putting up multi-storied
structures. The total extent of the property for the three buildings was 12
Grounds, while the building in question was on an area of 1 Ground and 277 sq.
ft. It was also observed that law does not require that unless the landlord
established beyond doubt that the building was in such a bad and dilapidated
condition that it would lead to immediate crumbling down, or later, he would
not be entitled to an order of eviction.
Reference
was made to the evidence of RW 1(the tenant), and RW2 (the engineer examined by
tenant) to state about age and condition of the building. With reference to
latter's evidence it was observed that since last forty to fifty years, no
construction was put up with Madras
terrace. Further, brick and lime mortar was used for construction and
plastering was by lime mortar. These material facts which were brought to
notice of the Court by the tenant clearly established that the building was at
least 50 years old and was not in good condition. In view of the aforesaid
conclusions, it was held that respondent-landlord had bona fide requirements
for seeking tenant's eviction.
In
support of the appeal learned counsel submitted that the High Court has erred
in exercising revisional jurisdiction when there were concurrent findings on
facts recorded by the Rent Controller and the Appellate Authority that the
building was not old and/or its condition was not such as to warrant immediate
demolition. With reference to this Court's decision in K.M. Abdul Razzak vs. Damodharan
(2000 (5) SCC 369), it was submitted that the High Court erred in exercising revisional
jurisdiction to act as an appellate Court to re-appraise or re-assess the
evidence afresh as an appellate Court and come to different findings contrary
to the factual findings recorded by the courts below.
Per
contra, learned counsel for the respondent-landlord submitted that age and
condition of the building are not the only criteria for bringing in application
of Section 14(1)(b) of the Act. In a given case, where the demolition was
intended to put up a new structure for better financial returns, it also
constitutes a bona fide requirement by the landlord.
In
order to appreciate the rival submissions, it would be necessary to notice the
legal position prevailing at the time the landlord filed the petition under
Section 14(1)(b) of the Act. Section 14(1)(b) reads as under:-
"14.(1).....the Controller, shall, if he is satisfied - *** (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." The said provision was interpreted by
this Court in P. Orr and Sons case (supra). It was observed that landlord could
succeed in an application under Section 14(1)(b) only when it is established
that the building is in dilapidated condition which require immediate
demolition. This decision was applied by the Rent Controller for rejecting
landlord's application for eviction. View in the said case was diluted by a
subsequent Constitution Bench decision in Vijay Singh and Ors. vs. Vijayalakshmi
Ammal (1996 (6) SCC 475). Some of the relevant observations made in the said
case read as follows:
"10.
Permission under Section 14(1)(b) cannot be granted by the Rent Controller on
mere asking of the landlord, that he proposes to immediately demolish the
building in question to erect a new building. At the same time it is difficult
to accept the stand of the appellants that the building must be dilapidated and
dangerous, unfit for human habitation. 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. These are some of the
illustrative factors which have to be taken into consideration before an order
is passed under Section 14(1)(b). No court can fix any limit in respect of the
age and condition of the building.
That
factor has to be taken into consideration along with other factors and then a
conclusion one way or the other has to be arrived at by the Rent Controller.
11.
Respondent also wanted to demolish the entire building in order to construct a
new shopping complex for which necessary permission from the municipal
authorities had already been obtained. It had also been claimed on behalf of
the respondent that she had sufficient financial resources for construction of
the new building. An undertaking had also been given on behalf of the
respondent that the work of demolition of the building would commence within
one month and would be completed before the expiry of three months from the
date the said respondent recovered possession of the building."
(Underlined for emphasis) As observed in para 11 (supra) where the landlord
wanted to demolish the building in order to construct a new shopping complex
for which necessary permission from the authorities had already been obtained
and sufficient financial resources were available for the construction the bona
fide requirement is established. In the case at hand both the Rent Controller
and the Appellate Authority held that the respondent-landlord wanted to
demolish the building in order to construct a new complex and had requisite
financial resources for undertaking the construction. High Court has referred
to Exts. P8 to P10 and the evidence of PW1 to hold that the requisite financial
soundness was to put up new multi-storied complex. In addition, agreement vide
P-11, to which reference has been made supra, was referred to in this context.
The
main contention of the learned counsel for the appellant is that the High Court
interfered with the concurrent finding of the lower authorities in regard to
the age of the building which is illegal. No exception can be taken to the
contention, but it does not alter the result. As noted above, both Rent
Controller and the Appellate Authority proceeded on the basis as if age and
condition of the building are the sine qua non for application of Section 14(1)(b)
of the Act, based on the view expressed in P. Orr and Sons case (supra). But in
view of the decision rendered by the Constitution Bench in Vijay Singh's case
(supra), though age and condition of the building sought to be demolished are
relevant factors to test bona fides of the landlord, they are not determinative
of the issue. Though we do not approve the High Court's approach in interfering
with the concurrent findings of fact, yet we do not consider it necessary or
just to interfere with the order under challenge, as on the other concurrent
findings of facts recorded by the lower authorities, referred to above, a
finding of bona fide requirement of the landlord has been recorded by the High
Court which is affirmed by us. The finding is sufficient to sustain the order
under challenge.
A
faint attempt was made by learned counsel for the appellant that there has been
no provision for re-induction of the tenant after re- construction. A rational
approach would be to hold that age and condition of the building are the only
relevant factors, keeping in view the beneficial context of the statute. This
plea is without any substance in view what is stated in Vijay Singh's case
(supra) and Prabhakaran Nair and Ors. vs. State of Tamil Nadu and Ors. (1987 (4) SCC 238).
In the latter case, it was observed as follows:
"It
has to be borne in mind that it is not practicable and would be anomalous to
expect a landlord to take back a tenant after a long lapse of time during which
time the tenant must necessarily have found some suitable accommodation
elsewhere. This is the true purpose behind Section 14(1)(b) read with Section
14(2)(b). In the aforesaid view of the matter, we are unable to accept the submission
that in providing for re-induction of the tenant in case of repairs and not
providing for such re- induction in case of reconstruction, there is any
unreasonable and irrational classification without any basis".
The
view was re-iterated in R.V.E. Venkatachala Gounder vs. Venkatesha Gupta and
Ors. (2002 (4) SCC 437).
The
inevitable result of this appeal is dismissal, which we direct, but without any
order as to costs.
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