w w w . L a w y e r S e r v i c e s . i n

D.M. Belgumvala v/s M/s. Tamilnadu Real Estates Pvt. Ltd., Represented by its General Manager

    C.R.P. (NPD) No. 3081 of 2009 & M.P. No. 1 of 2009

    Decided On, 18 February 2010

    At, High Court of Judicature at Madras


    For the Petitioner : P.B. Ramanujam, Advocate.For the Respondent : T.R. Rajagopalan, Senior Counsel for R. Balachandar, Advocate.

Judgment Text

( Prayer : Civil Revision Petition has been filed against the judgment and decree dated 11.8.2009 dismissing RCA No.662 of 2007 on the file of VIII Court of Small Causes at Madras, confirming the order of the eviction dated 6.10.2007 passed in R.C.O.P.N o.211 of 2006 on the file of the XI Court of Small Causes at Madras.)

1. The allegations contained in the eviction petition are as follows:-

1. (i) The petitioner is the owner of the demised premises in which the respondent is in occupation as tenant. The premises is known as "ARDESLEY" situate in old Door No.4C (New Door No.15), Nungambakkam High Road, Chennai 600034, consisting of a Bungalow with ground and first floor with servant quarters and garages in new Survey No.126/3 with an extent of 45 grounds. It was purchased by Mrs. Kathija Sultan and her daughter Fatima Sultan from Margurite Irene Walsh by virtue of sale deed dated 04.06.1929. Katheja Sultan bequeathed her half-share in the property in favour of her daughter Fatima Sultan by means of a sale deed dated 09-09-1949. The said Fatima Sultan rented out the Bungalow with an extent of 19.99 grounds out of 45 grounds to M.K. Belgamwala and his wife, who are residing in the first floor and they used ground floor for non-residential purpose. The petitioner by means of a deed of settlement dated 6.3.1973 obtained the property from Fatima Sultan and became the absolute owner. The said Belgamwala continued to be a tenant under the petitioner.

1.(ii) The petitioner filed HRC No.2376 of 1980 for fixation of fair rent in which the age of the building was fixed at 62 years. Since Belgamwala sublet the ground floor, the petitioner initiated eviction proceedings and they were evicted from the ground floor. The eviction order was confirmed by the appellate authority and High Court, Madras. The respondent is legal heir to his parents Mr. and Mrs. Belgamwala and he is continuing to occupy as tenant.

1. (iii) The demised premises is situate in Nungambakkam High Road, next to Taj Coromandel Hotel. The premises is situate in a posh commercial locality and two furlongs from Mount Road Gemini Flyover and Indian Oil Bhawan. It is stone throw distance from the Income Tax and Central Excise offices and also Institute of Chartered Accountants. Many nationalised banks are also situated in the vicinity. Accommodation in this area is very scarce.

1. (iv) Due to age, the premises developed cracks and during recent rains the cracks widened and the building further deteriorated and hence the petitioner asked the respondent to vacate the premises by means of a letter dated 17.11.2005, but there was no reply. The building served more than its usage period. The cracks are beyond repairable stage. On 14.12.2005 an Engineer from P.W.D. inspected the premises and observed as "It is presumed that the building may not be fit for habitation and recommended for dismantling." Hence the petitioner has decided to demolish the present building immediately and construct a multi storied building in the entire area of 45 grounds including the petition scheduled mentioned property. The petitioner undertakes that the work of demolishing any material portion of the building will be substantially commenced not later than one month and will be completed before the expiry of three months. Hence an order of eviction may be passed against the respondent.

2. In the counter filed by the respondent the following are stated:-

2. (i) The eviction petition on the ground of demolition and reconstruction is not maintainable in law and on facts. The alleged inspection is without notice to the respondent and hence it is not binding on the respondent in any manner. The contents of the alleged letter dated 6.1.2006 are merely self-serving evidence created by the petitioner to evict the respondent from the petition premises. It is incorrect to state that the condition of the building warrants immediate demolition and reconstruction. It is denied that the requirement of the petitioner is bona fide and that the petitioner has the wherewithal to put up a multi-storied building. The petition is totally silent about the steps taken for the purposes of demolition and reconstruction and indicate only a mere desire to demolish and reconstruct which will not establish the bona fides of the petitioner, entitling him to an order of eviction. The petitioner has suppressed material facts and circumstances from the Court and has wilfully chosen not to disclose certain vital particulars. In the schedule to the Eviction Petition it is mentioned the extent of property as 19.99 grounds. However, the alleged intention is to demolish and reconstruct the entire area of 45 grounds, including the petition schedule property. The petitioner has wantonly not disclosed the particulars with regard to the occupation of the remaining areas in the property.

2. (ii) Even before the purchase of the petition premises by the petitioner, their Vendor, Fathma Sultan as early as on 31.07.1969 permitted the respondent's father to put up a superstructure in a portion of the property and accordingly, the respondent's father obtained planning permit from the Corporation authorities and put up a building. The assessment of the building was also only in the name of respondent's father for which also the petitioner's vendor did not object and in fact, she gave a letter to that effect on 4.8.1971 to the Revenue Officer, Corporation of Chennai.

2. (iii) Subsequent to the demise of the respondent's father, the assessment in respect of the building was changed in the name of respondent and taxes are being paid only by the respondent. The respondent is paying land rent to the said building at Rs.538/- per month to the petitioner and the petitioner has also accepted the land rent in respect of 1724 sq.ft. approximately which forms part of 19.99 grounds along with the monthly rent for the tenanted premises. While so, without taking any steps to get the respondent vacated in respect of the land being occupied by the respondent, the petitioner cannot claim to demolish and reconstruct the entire property. As long as the respondent is owning the building in a portion of the petitioner's land, the petitioner will not be in a position to even get sanctioned plan for demolition and reconstruction, leave alone carry out his fanciful desire to construct a multi-storied building in the property.

2. (ivi) The present attempt is only to evict the respondent by hook or crook and there is no bona fide request made by the petitioner. On one occasion, the petitioner disonnected electricity supply to the respondent in October,2005 and the respondent was also forced to approach the TNEB for restoration of supply. On the another occasion, the petitioner did not permit the respondent to clean the drains which were clogged. The petitioner also gave a false complaint to the Tamilnadu Pollution Control Board against the respondent. Thus, it can be very clearly seen that the petitioner's requirement of the petition premises is not at all bona fide and on the contrary, it is a mala fide attempt to get rid of the respondent from the property and nothing short of it. Hence the petition may be dismissed with costs.

3. In the Additional Counter, the respondent has mentioned the following:-

The petitioner's company has not followed the procedures stipulated under the Companies Act and the petition is not maintainable. It cannot maintain RCOP as the statutory authorities have rejected the plan for demolition and re-construction. It is also learnt that there are acquisition proceedings/reclassification proceedings in respect of the 45 grounds where the petition premises is situate. As such it is impossible for the petitioner to get order for demolition and re-construction.

4. In the reply counter filed by the Landlord the following are stated:-

4. (i) The tenant has not given any particulars of alleged violation of procedure by the petitioner's company. The averment that the statutory authorities have rejected the plan for demolition /re-construction is far from truth. Such plan is not a sine quo non for filing the eviction petition. The acquisition proceeding initiated by the Tamil Nadu Housing Board was quashed by the High Court in W.P.No.5646 of 1986 filed by this petitioner. The SLP No.19168 of 2001 before the Supreme Court preferred by the Board was dismissed. There is no acquisition proceeding is pending.

4. (ii) The CMDA insisted for production of a updated PLR inspite of the fact that patta already stands in the name of the petitioner against which the petitioner filed W.P.No.21066 of 2006 before the High Court. The petition was dismissed. The appeal preferred by the petitioner in W.A.No.1220 of 2006 was allowed. The respondent is not at all concerned with the above said proceedings.

5. After scrutinising the pleading, oral evidence, documents and other materials on record, the learned Rent Controller passed an Eviction order directing this petitioner to vacate and deliver the premises to the respondent within two months. This petitioner carried the matter in appeal in R.C.A.No.662 of 2007 and the same also suffered dismissal. Challenging the said order, the petitioner is before this Court.

6. The first and foremost contention of the petitioner is that even before the purchase of the petition premises by the Landlord Fatima Sultan on 13.7.1969 permitted this petitioner's father to put up a superstructure in a portion of the property. It was assessed to property tax in the name of the father of this petitioner and in fact on 4.8.71 the said Fatima Sultan gave no objection letter to Revenue Officer of Madras Corporation.

7. After the demise of his father the respondent continued to enjoy the superstructure and got his name mutated in the assessment records. It is contended by him that Rs.538/- per month was paid by him as land rent to the Landlord since the structures standing over the land belongs to him (respondent).

8. The learned counsel for the petitioner Mr.P.B. Ramanujam would contend that in respect of the building put up by tenant, the petition for eviction is not maintainable and that eviction could not be ordered in respect of the portion which is in occupation of the petitioner which was built by his father. In support of his contention he placed reliance upon the Judgment of the Supreme Court in 2000 MLJ (Supp) 126 (SC) = (2000) 5 SCC 646 [Kamala Devi v. Lakshmi Devi] wherein Their Lordships have observed as follows:

"11. When, in any case, the question arises whether an open plot of land or a plot of land with structure thereon, was let out, the Court has to determine the same on the facts of that case. In deciding this question, it will be useful to bear in mind that if the plot with structure was let out, it will fall within the meaning of the term "premises" but if open plot without any structure was let out, then it does not fall within the meaning of the term 'premises'. It is immaterial whether the tenant raised structures before the creation of the tenancy or after he was let in as a tenant. In either case, the tenant alone will have the propriety rights in the structure and not the landlord."

9. (a) Their Lordships explained the definition for the term "Premises" and held that when a building with superstructure was let out, it would be called as "Premises". If only a plot is let out and when the tenant puts up any superstructure then he will have the propriety right in the structure. The Apex Court has distinguished the letting out of a vacant site with superstructure and vacant site alone. In the case on hand it is the conceded fact that vacant site alone was not leased out to the parents of the petitioner, but certain vacant site alongwith superstructure viz., building were let out to them and hence both the plot and the building could be brought within the purview of the term "premises" and hence the tenant cannot claim that since his father built a superstructure over the site pertaining to the building portions let out to him, the eviction order could not be passed. To put it otherwise, when it is not the case of the petitioner that a vacant site or a plot alone was leased out to his father and his father built a superstructure, there could be no contention that the eviction petition is not maintainable.

9. (b) The petition for eviction has been filed to evict the tenant from the premises leased out to the parents of the petitioner and what are all the superstructures put up by him would in no way be an impediment for passing of eviction order, in view of the definition of the term "premises" contained in the statute. It is defined in Tamil Nadu Lease and Rent Control Act in Sec.2(e)(1)(i) that, "premises" means 'any building or part of a building which is, or is intended to be, let separately for use as a residence or for commercial use or for any other purpose.'

10. (i) The learned counsel for the petitioner stressed on the observation in the above said decision that when the tenant raised structures before or after the creation of tenancy in an open plot, he alone will have the proprietary rights in the structure and not the landlord. In this connection, much was said about the applicability of Section 108(h) of Transfer of Property Act, 1882, which reads as follows:-

"108. (h) the lessee may [even after the determination of the lease] remove, at any time [whilst he is in possession of the property leased but not afterwards] all things which he has attached to earth; provided he leaves the property in the state in which he received it."

But the learned counsel for the respondent would contend that the provisions of Transfer of Property Act are not applicable in the matter covered by rent control proceedings.

10. (ii) In Kamala Devi's case (supra) the landlord filed a suit for eviction against the tenant who had put up a latrine in an open plot of land measuring 9' x 7' which is subject matter of the suit. The tenant had unauthorisedly constructed a latrine. The landlord filed a suit for eviction. Since both the parties settled the dispute and filed compromise under which the respondent became tenant of the suit plot on a monthly rent of Rs.5/-, the suit was dismissed as withdrawn on 27.3.1978. After termination of tenancy, the landlord again filed a suit for recovery of possession of the suit plot by evicting the respondent. The suit was dismissed by observing that the suit plot was "premises" within the meaning of Delhi Rent Control Act and the suit was barred. The Landlord preferred an appeal and the same was also dismissed. Further appeal before the High Court also suffered dismissal. Hence, he carried the matter in Civil Appeal before the Supreme Court. The Supreme Court held that the suit plot does not fall within the term "premises" under the Delhi Rent Control Act and ousting the jurisdiction of the Civil Court will not arise. The finding of the Apex Court is that the building which was let out to the respondent was a different premises under a different agreement and the suit plot can not be treated as part of that building as a separate tenancy was created in respect of the suit plot under the compromise.

10. (iii) The facts in the present case are entirely different. There was a single tenancy of the building and the land appurtenant thereto originally in favour of father of the petitioner. Even if it transpired from Exs.R-3 and R-4, letters issued by Fathma Sultan to the Chief Engineer, Madras Corporation and the Revenue Officer of Corporation of Madras respectively, that she had no objection to assess the building put up by Belgamvala for property tax, it is worthwhile to note that the plot on which the construction made by M.K. Belgamvala was not separated from the premises and there was no separate tenancy with regard to the said plot. Both the above said letters were dated 31.7.1969 and 4.8.1971 respectively. It is not pleaded and proved that the said building was separately leased to the father of the petitioner. It is stated in the counter that land rent of Rs.538/- is being paid to the landlord as the building does not belong to him, but to the tenant and the landlord has accepted the land rent in respect of 1724 sq.ft. which forms part of 19.99 grounds along with the monthly rent for the tenanted premises @ Rs.1,622/- per month without any demur or protest whatsoever.

10. (iv) In this regard, on 30.12.1993 the tenant had sent a letter under Ex.P-3 to the landlord stating that he enclosed a cheque for Rs.538/- being the land rent for non residential purposes as fixed by the Appellate Authority in H.R.A.No.688 of 1981 for the month of December 1993. Again on 28.2.1994 also, another cheque for Rs.538/- was sent by the petitioner to the respondent with identical mention. But a reply was given by the respondent on 2.3.1994 under Ex.P-6 clarifying that they take strong objection with reference to the payment of Rs.538/- as if it is for land rent and that in H.R.A.No.688 of 1981 the Appellate Authority has not classified the sum of Rs.538/- as land rent. It is also reiterated in the said letter that no land alone was separately let out to the tenant, as such the sum of Rs.538/- sent by him as land rent is received towards rent for the non-residential portion only and not as land rent. Thereafter, it appears that there had been no transaction between the parties with regard to the "land rent". The above said circumstance would indicate that the landlord did not accept the payment of Rs.538/- as "land rent". There is no material to show that the Appellate Authority in H.R.A.No.688 of 1981 classified the sum of Rs.538/- as land rent. Exs.P-2 and R-17 are copies of judgment passed in R.C.A.No.688 of 1981 dated 31.01.1992. A perusal of the same would show that there is no specific mention with respect to the rental value for the site on which the building raised by the tenant was available. Except these two instances, there is no payment of Rs.538/- and such payment was also not accepted by the landlord as land rent. Hence, the contention that the landlord accepted the land rent, has no substance.

10. (v) From the above said factors it is seen that there had been no tenancy with regard to any other portion of land separately. The rent was paid by the tenant and collected by the landlord in one unit which is in entirety for the "premises" along with buildings and land appurtenant to them. Only if an open plot is let out, the tenant can agitate that rent control proceedings is not sustainable. But here, there was no lease of separate plot of land. Hence, the contention that the rent control proceedings are not maintainable with respect to the construction made by the father of the petitioner, is not acceptable. Since the construction belongs to him, the petitioner may at any time demolish the same and take away the material prior to eviction.

11. The next limb of contention of the learned counsel for the Petitioner is that the landlord has not complied with the statutory requirements by producing the sanctioned plan for proposed construction. It is alleged in the eviction petition that the building is in dilapidated condition and it has suffered damages in various portions. P.W.2 is the Engineer inspected the demised premises on 4.9.2006 and filed a report. He deposed with regard to the damages found in various parts of the building. He has also produced photographs which show the cracks developed in various walls and parts of the building. He is of the opinion that the building is aged more than 100 years. This petitioner was also confronted with certain photographs which are showing specific portions with cracks and damages and he admits that such damages are existing in the building. It is his evidence that even though the building is aged about 100 years, it is in good condition. However, by means of Ex.P-20, he has reported that the kitchen room had collapsed. The specific admissions of the petitioner in his cross examination with reference to the damages indicated by the landlord would go a long way to show that the building is not fit for occupation and that it may collapse at any time. A perusal of the photographs also would support the view. In the considered view of this Court, the demised premises requires immediate demolition.

12. The next leaf of contention of the petitioner is that since no sanctioned plan was obtained and produced by the respondent no eviction order could be passed. However, the Supreme Court has held in (2002) 5 SCC 229 [Harrington House School v. S.M.Ispahani and Another] that only on the plan being sanctioned by the local authority, the decree for eviction shall be available for execution and such sanctioned or approved plans shall be produced before the executing court whereupon the executing court shall allow a reasonable time to the tenant for vacating the property and delivering possession to the landlord decree-holders. The Supreme Court permitted the landlords to produce the plans along with the undertaking before the executing Court as required in Sec. 14(2)(b) of the Act. In view of the above said decision, it has to be observed that even if sanctioned plan is not produced in the eviction proceedings, before passing the order for delivery before the executing court, the landlord shall produce the sanctioned plan.

13. Yet another contention of the petitioner on the claim of the respondent is that the demised premises is covered by acquisition proceedings and hence there could be no eviction. The petitioner sent a letter on 15.03.2007 to the Chairman of Tamil Nadu Housing Board Chennai under Right to Information Act 2005 requiring him to make him know the current status regarding land acquisition of land in R.S.No.126/3 approximately 45 grounds 160 sq.ft. in Nungambakkam, Madras, by means of Ex.R-1 letter. The said authority sent reply (Ex.R-2) stating that fresh acquisition is in process for measuring an extent of 45 grounds and 160 sq.ft. in R.S.No.126/3 in Nungambakkam Village. Even though in the reply counter filed by the landlord, it is stated that the acquisition proceedings were quashed, subsequently in the year 2007, it appears that a fresh proposal has been under process. However, an acquisition proceedings will not com

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e to the rescue of the tenant. He himself admits in his cross examination that even though the acquisition proceedings were initiated, he has to vacate the premises. The acquisition proceedings, if any, is between the landlord and the Government and the tenant has no say in it. 14. There is no specific denial on the part of the tenant as regards the means possessed by the landlord for demolition and re-construction. However, the respondent has produced documents to show that they have got sufficient means for the purpose. 15. The learned Counsel for the petitioner cited the following decisions: 1. 1965 (2) M.L.J. 12 [Sha Manakchand v. Sankarji Moolchand] 2. 1985 (1) M.L.J. 205 [Sherwood Educational Society, Madras 31 v. Hussainly Begum Namazie and others] 3. 1998 ? 1 ? L.W. 796 [M. Karuppanna Gounder v. C. Visuvasam and 4 others] and 4. 1998 M.L.J. (Supp) 56 [M.S. Zahed v. K. Raghavan] 16. When the landlord is able to establish the bona fide intention for demolition of a dilapidated structure leased out to a tenant, he is entitled to get order for eviction. The Constitution Bench of the Supreme Court in Vijay Singh v. Vijayalakshmi Ammal [(1996) 6 SCC 475] held that the bona fides of requirement for demolition could be found out by taking into account (i) bona fide intention of the landlord far from the sole object only to get rid of the tenants, (ii) the age and condition of the building, and (iii) the financial position of the landlord to demolish and erect a new building. The necessary statutory requirements have been satisfied by the landlord in this case. The age of the building is admittedly about 100 years and has developed damages and cracks in vital portions and the landlord has got sufficient means for demolition and to construct a new building. Since the intention of the landlord has been found to be bona fide, they are entitled for order of eviction. Hence, this Court does not find any infirmities either legal or factual in the orders passed by the authorities below, which deserve to be confirmed and accordingly they are confirmed. The Civil Revision Petition suffers dismissal. In fine, the Civil Revision Petition is dismissed No costs. Connected M.P. is also dismissed. Time for delivery three months. The petitioner may demolish the superstructure which belongs to him and take away the materials prior to eviction.