(Prayer: Civil Revision Petition filed under Article section 115 of C.P.C. against the order dated 30.07.2012 passed by the learned VII Judge, Small Causes Court, Chennai in R.C.A.No.2 of 2008 confirming the judgment and decree passed in R.C.O.P.No.2246 of 2006 dated 20.11.2007 on the file of XIV Judge, Small Causes Court, Chennai.)
1. The revision petitioner Company is the tenant. They are aggrieved against the order of eviction passed concurrently by the courts below on the ground of demolition and reconstruction. The respondent Company is the landlord.
2. The contentions of the respondent as the landlord in R.C.O.P.No.2246 of 2006 on the file of the learned Rent Controller, Small Causes Court, Chennai are as follows:
The respondent/landlord purchased the petition mentioned premises on 28.06.2006 by way of a registered sale deed. The petitioner herein is the tenant under the respondent in respect of a non residential portion, measuring 6174 sq.ft. in the ground floor of the premises bearing No.78/829, Anna Salai, Chennai-2 on a monthly rent of Rs.32,603/-. The entire building is very old and in a most dangerous and dilapidated condition. It may fall at any time. It was constructed about 100 years ago by using brick in mud mortar. As the building is in dangerous condition, the Corporation of Chennai had issued a notice for immediate demolition of the existing old building. Such notice was issued even to the previous owners as it is in a dangerous condition. Immediately after purchase, the respondent informed the petitioner and other tenants (totally 128) about the condition of the building and their intention to demolish and reconstruct a huge building and requested them to vacate. Though the tenants promised to vacate, they have not done so. The landlord themselves are the construction company and they have got ample resources and means for demolition and reconstruction of a new building. Therefore, they are seeking eviction of the petitioner herein under section 14 (i)(b) of the Tamilnadu Buildings (Lease and Rent Control) Act 18 of 1960 as amended by Act, 23 of 1973.
3.The said application was resisted by the petitioner/tenant by filing a detailed counter. It is stated therein that the landlord did not disclose the earlier proceedings initiated against the petitioner/tenant seeking for eviction on the ground of owner's occupation, which came to be dismissed on 29.06.1988. Again, another R.C.O.P. filed seeking for eviction of the tenant on the ground of additional accommodation was also dismissed as withdrawn since the matter was settled out of court. The tenant has also referred about the applications filed for fixation of fair rent and orders made therein. In so far as the present issue of demolition and reconstruction is concerned, it is stated by the tenant that they had incurred huge expenses in repairs and renovation of show room in upgrading and making it structurally more sound. The structural stability of the building has been confirmed by an independent architect. Since the building is very old and more than 100 years, the building could be classified as 'Heritage Monument' and consequently to be protected from the applicability of the Rent Control Act.
4. The learned Rent Controller based on the respective pleadings and evidence and also by considering various case laws cited, by an order dated 20.11.2007, allowed the R.C.O.P. and ordered eviction by granting two months time.
5. The tenant preferred an appeal before the Appellate Authority in R.C.A. No.2 of 2008. The learned Appellate Authority after considering the facts and circumstances of the case and the arguments advanced on either side, dismissed the appeal by his judgment and decree dated 30.07.2012. Aggrieved against the same, the present civil revision petition is filed.
6. Mr.Krishna Srinivasan, learned counsel appearing for the petitioner submitted that there is no bonafide on the part of the landlord since their predecessor in title to the property had permitted the tenant to continue in possession for a period of 15 years by executing an agreement with an option to extend the occupation for further 15 years. Therefore, the petitioner cannot be evicted from the premises. He further contended that though it is 100 years old building, it cannot be demolished as it is found to be a heritage building by the Heritage Committee headed by a retired Judge of this Court, Hon’ble Mr.Justice E.Padmanabhan. Since it is a heritage building, the demolition of the same without permission of the heritage committee cannot be done. He also relied on Rule 2 of Special Rules for Conservation of Heritage Buildings made under Development Control Rules, 2008 to contend that no development of heritage buildings without the permission of the Chennai Metropolitan Development Authority and heritage committee is permissible. He further submitted that the notice to the owners of heritage building was given as per the report of the said heritage Committee, which fact has been admitted by the learned Advocate General in another proceedings before the Division Bench of this Court in W.P.No.7066 of 2012. Thus, the learned counsel submitted that the heritage status of the petition premises and the report of heritage Committee were not taken into consideration by the courts below while ordering eviction. He further submitted that this particular issue was not raised or considered by this court in other civil revision petitions filed by the other tenants who occupied other portions in the very same building. He further submitted that as per Section 4 of the Tamilnadu Buildings (Lease and Rent) Control Act, the petitioner is entitled to be there for 15 years as per the registered lease deed executed in his favour by the previous landlord. In support of his submission, he relied on the decision reported in AIR 1974 SCC 818, RAVAL AND CO. vs K.G.RAMACHANDRAN AND OTHERS, 2010 WLR 836, THE INDIAN NATIONAL TRUST FOR ARCHITECTURAL AND CULTURAL HERITAGE (INTACH) v THE CHENNAI METROPOLITAN DEVELOPMENT AUTHORITY.
7. Per contra, Mr.G.Ramachandran, learned counsel appearing for the respondent submitted that the entire building and premises measure 10 grounds and is admittedly 100 years old, where the petitioner is in occupation only in a portion of the same in the ground floor. The building has got four floors viz., Ground, First, Second and Third floors. Already 2nd and 3rd floors were demolished as all other tenants have vacated. There were totally 128 tenants in the premises. After the proposal for demolition and reconstruction was made, 60 tenants have vacated and handed over vacant possession to the landlord as the building is in dilapidated condition requiring immediate demolition and reconstruction. As against the remaining 68 tenants, eviction petitions were filed by the landlord. In all 68 eviction petitions, the learned Rent Controller ordered eviction including the petitioner herein. Out of the said 68 eviction orders, only 27 tenants have filed appeals before the Appellate Authority. All the appeals were dismissed including that of the petitioner. Against which, only 8 tenants have filed further civil revision petitions before this court. Out of the same, 5 civil revision petitions have been settled before the Lokadalat and the tenants therein have vacated the premises. Another revision in C.R.P. No.3568 of 2011 came to be dismissed by the Honourable First Bench of this Court. The 7th civil revision petition filed by one M/s.Batta Company in C.R.P.No.1393 of 2012 also came to be dismissed by this court on 06.08.2012. Thus, the only tenant contesting out of the total 128 tenants is the present civil revision petitioner. He further submitted that as per the lease deed dated 25.10.2002, the tenant is bound to vacate and hand over vacant possession, if the landlord requires the premises for demolition and reconstruction. Even the said lease deed was entered between the petitioner herein and the previous owner and the present landlord was not a party to it. A competent Engineer had filed a report that the building is 100 years old and the said fact is also conceded by the tenant. Even from the perusal of heritage Committee’s report, it could be seen that the building is 100 years old. The building has not been declared so far as Monument. He further submitted that heritage Committee’s report is only a recommendation. Chennai Metropolitan Development Authority has got power to decide even in respect of such buildings by taking note of the age and condition of the building. He further submitted that the Government of Tamilnadu accorded approval for issue of the planning permission to the respondent herein for the proposed construction of Multi-Storied building in the petition mentioned premises through its letter dated 29.12.2009. Consequently, the Chennai Metropolitan Development Authority also granted approval of planning permission to the landlord through proceedings dated 21.01.2010. As the Competitive Authority viz., Chennai Metropolitan Development Authority and the Government have granted permission for demolition and reconstruction of Multi Storied building, the petitioner cannot, still, rely on the heritage Committee’s report to contend that the building cannot be demolished. As the Corporation itself had given notice for demolition as early as in the year 1982, which fact has been referred to in the sale deed executed in favour of the landlord, the petitioner cannot dispute the bonafide of the landlord.
8. Heard the learned counsel appearing for either side.
9. The only issue before this Court in this civil revision petition is as to whether the order of eviction concurrently passed by the Courts below against the petitioner is sustainable on the ground of demolition and re-construction.
10. The facts which are not in dispute are as follows:
The respondent is the landlord and the petitioner is the tenant in respect of a portion of the building and premises totally measuring about 10 grounds and having four floors. There were 128 tenants in the entire premises and all of them, except the petitioner and another, have vacated the premises either on their own or in pursuant to the court orders. Only the petitioner, who is in occupation of 6174 sq.ft. portion in the ground floor, is resisting the eviction. The other tenant was given six months time from 05.08.2012 by this Court to vacate, while dismissing their revision in C.R.p.No.1393 of 2012, based on their request.
11. To Put it elaborately, out of the total 128 tenants, 60 tenants have vacated on their own and only 68 refused. Even as against those 68 tenants, eviction petitions were filed and all those petitions were allowed including that of the revision petitioner herein. As against the said eviction orders, only 27 tenants preferred appeals and all those appeals were dismissed by the Appellate forum. Further revisions were filed before this court only by 8 tenants out of which 5 revisions got settled before the lokadalat and the respective tenants have also vacated and handed over vacant possession of their respective portions. The civil revision petitions filed by other two tenants have also been dismissed one by the Hon’ble First Bench and another by the learned single Judge of this Court in a recent decision dated 06.08.2012 as referred supra. Thus, the fact remains that the petitioner herein is the only tenant in occupation of the portion of the premises and resisting the eviction proceedings.
12. Though this revision was filed by raising several grounds against demolition and reconstruction, the fact remains that this Court in C.R.P.No.1393 of 2012 filed by the other tenant viz., Batta India Limited who was also in occupation of the other portion of the same building, has rejected the contention of the tenant therein. The learned Judge considered all the contentions raised therein and ultimately came to the conclusion that the eviction order passed on the ground of demolition and reconstruction is valid and accordingly, dismissed the revision by granting six months time to vacate, through order dated 06.08.2012. The learned counsel for the petitioner in fact though urged that the building cannot be demolished as it is heritage building, has not however raised any serious objection against the bonafide need of the landlord and their capacity to demolish and reconstruct the petition premises. Therefore, when other tenants have lost before this court against the order of eviction in respect of the very same building on the very same ground of demolition and reconstruction, I am of the view that I need not once again go into those issues viz. bonafide need, capacity to construct etc., except by respectfully following the earlier decisions made in respect of the same building. Nothing is placed before me to show that the order passed by this Court in other civil revision petitions against other tenants have been either challenged before the Apex Court or any interim order of stay is granted therein.
13. It is true that the other contention raised by the learned counsel for the petitioner regarding the heritage nature of the building has not been raised before the learned Judge who decided the C.R.P.No.1393 of 2012. Therefore, it is submitted that this court has to decide this revision independently without getting influenced by the order passed therein. Certainly, as the said issue was not raised in the other matter, I am bound to consider and decide the same in this civil revision petition.
14. First of all, in so far as the age of the building is concerned, it is admitted by the petitioner that it is 100 years old. No doubt, the Heritage Committee has filed a report by indicating that state of preservation of the petition building as 'Fair'. But, a perusal of the said report would show that this building was referred to as Bata's Building, Hotel Dangeli's, Anna Salai, having only two floors structure, when the fact remains that the building has four floors. It is also referred therein that the year of construction as 1906. Based on these informations furnished in the report with regard to the petition mentioned premises, the learned counsel appearing for the petitioner would like to contend that the building is a heritage building and therefore, it requires to be protected from demolition.
15. The learned counsel for the petitioner strongly relied on a decision of the Hon'ble Division Bench of this Court reported in 2010 Writ L.R. 836, The Indian National Trust for Architectural and Cultural Heritage (INTACH) v. The Chennai Metropolitan Development Authority, in support of his submission. A perusal of the said decision would show that the same was in respect of a writ petition filed in public interest to protect and conserve Bharat Insurance Building from being demolished without applying provisions of Rule 22 of the Development Control Rules for Chennai Metropolitan Area, 2004. The Hon'ble Division Bench while considering the said writ petition has taken note of the report filed by the Heritage Conservation Committee and observed at paragraph No.19 as follows:
"19. Some times, in an enthusiastic effort "to clean up" a temple or a heritage building, we have seen that the persons who undertake this effort do sand blasting which actually damages the quality of the pillars or the structures as such. Therefore, the Government shall issue rules to prevent persons from undertaking any repair even under the name of renovation of heritage buildings without seeking the necessary approval of the Heritage Conservation Committee whenever an ancient monument, whether it is a structure or erection of historic, archaeological or artistic value as described in the Tamil Nadu (25 of 1966). The CMDA must take the recommendation of the Committee for conserving the heritage buildings in the Chennai Metropolitan Area. The Government shall also enact rules so that such heritage buildings, wherever in the State, shall not be demolished except after obtaining the conditions similar to the ones provided for under the Development Control Rules."
Thus from the decision of the Hon'ble Division Bench, it could be seen that the Government was directed to enact rules so that such heritage buildings are not demolished except after obtaining the permissions similar to the ones provided for under the Development Control Rules.
16. At this juncture, it is useful to refer to Rule 2 of Special Rules for Conservation of Heritage Buildings shown as Annexure XXV to Development Regulations for CMDA, which reads as follows:
"2. Restriction on Development/Redevelopment/Reparis, etc.
[i] No development or redevelopment or engineering operation or additions, alterations, repairs or renovation including the painting of buildings, replacement of special features or demolition of the whole or any part thereof or plastering of said listed/heritage buildings or listed/heritage precincts shall be carried out except with the prior written permission of the Member Secretary, Chennai Metropolitan Development Authority. The Member Secretary, Chennai Metropolitan Development Authority shall act in consultation with the Heritage Conservation Committee to be appointed by the Government [hereinafter called "the said Heritage Conservation Committee."].
Provided that in exceptional cases for reasons to be recorded in writing the Member Secretary, Chennai metropolitan Development Authority may overrule the recommendation of the Heritage Conservation Committee.
Provided that the powers to over rule the recommendation of the Heritage Conservation Committee shall not be delegated by the Member Secretary, Chennai Metropolitan Development Authority to any other officer.
[ii] In relation to religious buildings in the said list, the changes, repairs, additions, alterations and renovations required on religious grounds mentioned in sacred texts or as a part of holy practices laid down in religious codes shall be treated as permissible, subject to their being in accordance and consonance with the original structure and architecture, designs, aesthetics and other special feature thereof.
Provided that before arriving at his decision, the Member Secretary, Chennai Metropolitan Development Authority shall take into consideration the recommendation of the Heritage Conservation Committee."
17. A perusal of the said Rule would only show that no development activities or demolition of the whole or any part of the heritage building shall be carried out except with the prior written permission of the Member Secretary, Chennai Metropolitan Development Authority. It further reads that the Member Secretary of Chennai Metropolitan Development Authority shall act in consultation with the Heritage Conservation Committee to be appointed by the Government. It also empowers the Member Secretary, CMDA to overrule the recommendation of Heritage Committee in exceptional cases. Thus, even according to the said Rule, the Chennai Metropolitan Development Authority is the competitive authority for granting permission for development activities including demolition and reconstruction of the heritage building.
18. Further perusal of Rule 3 of Special Rules for conservation of heritage buildings would show that the list of heritage buildings have to be notified by the Government after its approval and before such notification, concerned owners of the buildings should be put on notice for giving them an opportunity to represent regarding the proposed notifications. Thus, it is crystal clear that a building can be treated as heritage building only after proper notification by the Government as contemplated under Rule 3.
19. In this case, though the learned counsel for the petitioner brought to my notice that the learned Advocate General had informed this court while appearing in another matter that notices were served on owners, he has not placed any other materials to show that such notification was issued by the Government in respect of the present building in dispute thereby approving the same as heritage building.
20. On the other hand, it is stoutly contended by the learned counsel appearing for the landlord that the building was never declared as a monument and the Heritage Committee’s report is only a recommendation. At any event, even assuming that it is notified under Rule 3, still the Chennai Metropolitan Development Authority has got power under Rule 2 for demolition of the said building. In this case, as discussed supra, both the Government and the Chennai Metropolitan Development Authority have issued proceedings in favour of the landlord for putting up Multi Storied Commercial Complex in the said premises. In fact, the first proviso to Rule 2(ii) also indicates that the Member Secretary to Chennai Metropolitan Development Authority may overrule the recommendation of the heritage committee in exceptional cases. Considering all these facts and circumstances, I am of the view that the contention raised by the learned counsel in this regard cannot be sustained.
21. Admittedly, as on date, the entire building is not in existence and on the other hand, the second and third floors were already demolished. It is also a fact which is not in dispute that all the tenants except two (including the petitioner herein) have vacated the premises and out of these two tenants, one was granted six months time to vacate the premises by an order made by this Court in C.R.P.No.1393 of 2012 dated 06.08.2012. Thus, the only tenant viz. the petitioner herein is in possession in a portion of the entire building and resisting the eviction.
22. The learned counsel appearing for the respondent placed the proceedings of Chennai Metropolitan Development Authority in its communication dated 21.01.2010 in Letter No.C3/3892/2008. Through the said proceedings, the Chennai Metropolitan Development Authority has intimated the respondent /landlord that the proposal received from them over the proposed construction of Multi-Storied building at the petition premises was under process and the respondent was directed to remit the required development charges, fees with security deposit, etc., including infrastructure and amenity charges. Further from the communication issued by the Government of Tamilnadu through its Principal Secretary to Government, Housing and Urban Development Department, Secretariat, Chennai-9 dated 29.12.2009 to the Member-Secretary, Chennai Metropolitan Development Authority, Chennai-8, it is seen that the landlord’s request has been accorded approval by the State Government for putting up a multi-storied building panel project and for issuing planning permission to the respondent/ landlord. The relevant portion of letter issued by the Government is extracted herein:
"I am directed to invite attention to the reference cited wherein you have requested the Government to accord approval to the recommendation of the Multi-storied Building Panel for issue of Planning Permission to M/s.Express Construction for the proposed construction of Double Basement Floor + Ground Floor + 9 Floors + 10th Floor part – Hotel building at Door No.829, Anna Salai, R.S.No.3286/1,2, 3287/1 and 2, Block No.65, Triplicane Village, Chennai.
2. The Government, after careful examination, have decided to accord approval to the recommendation of the Multi-storied Building Panel subject to fulfillment of the conditions imposed by Director of Fire and Rescue Services in his No Objection Certificate. Accordingly, the Government, approve the recommendation of the Multi-Storied Building Panel for issue of Planning Permission to M/s.Express Construction for the proposed construction of Double Basement Floor + Ground Floor + 9 Floors + 10th Floor part – Hotel Building at Door No.829, Anna Salai, RS.No.3286/1,2, 3287/1 and 2, Block No.65, Triplicane Village, Chennai based on the plan incorporating the conditions imposed by Director of Fire and Rescue Service in his No Objection Certificate issued in R.Dis.No.6438/C1/2008, dated 29.04.2008 subject to the condition that the applicant should handover strip of land [3.00m space] for road widening to Highways Department free of cost before applying for completion certificate."
Only based on the said communication issued by the Government, the Chennai Metropolitan Development Authority has issued the above referred letter dated 21.01.2010, calling upon the petitioner to pay the development charges and other charges for granting planning permission. No doubt, these two proceedings have come into existence subsequent to the filing of the RCOP. This petition for eviction filed by the landlord is on the ground of demolition and reconstruction. The bonafide is not only to be shown as existing at the time of filing the eviction petition, and also to be kept alive all throughout the proceedings. Hence these materials placed, though, are subsequent in nature, still they can be taken note of to consider the bonafide of the landlord. Thus, these subsequent developments only strengthen the bonafide of the landlord without leaving not even a slightest doubt in the mind of the Court.
23. The landlord has in fact claimed that the Corporation had issued a demolition notice as early as in the year 1982 itself to the previous owner. The said fact is also said to have been referred to in the sale deed executed in favour of the present landlord. Though no such proceedings from the Corporation have been marked before the Rent Controller, the learned counsel for the respondent s
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ubmitted that the said registered sale deed was marked before the Rent Controller as Ex.A2 wherein the issuance of said notice was referred to. When the petitioner has not disputed the said sale deed, he cannot be permitted to contend that there was no notice issued by the Corporation at the earliest point of time. Even assuming that there was no notice issued by the Corporation, in view of the admitted fact that the building is of 100 years old and all other tenants have vacated and the major portion of the building viz. 2nd and 3rd floors have also been demolished, the petitioner cannot be permitted to contend any further that the building is not required for demolition and reconstruction and that the landlord is not having bonafide, especially under the circumstances that the State Government and Chennai Metropolitan Development Authority have issued proceedings dated 29.12.2009 and 21.01.2010 respectively as referred supra in favour of the landlord for putting up multi-storied building. The learned counsel for the petitioner has mainly urged only 'the heritage building issue' before this Court, which I am unable to accept for the reasons and discussions as stated supra. When admittedly, as on date, the major portion of the building is not available as the 2nd and 3rd floors have been demolished already, the question of preserving the building, even assuming that it requires to be preserved, does not arise for consideration by taking note of the facts and circumstances of this case as discussed above. 24. At this juncture, it is useful to refer a decision of the Honourable Division Bench of this Court reported in (2013) 4 MLJ 761, THOMAS G.RATHINARAJ v UNION OF INDIA rep. By its SECRETARY, MINISTRY OF ART AND CULTURE, NEW DELHI AND OTHERS. In the said case, the prayer sought was to declare a particular Church at Coimbatore as a protected ancient and heritage monument of historical importance and recommend for its preservation. The Hon'ble First Bench after considering various aspects of the matter and also by taking note of the fact that 75% of the demolition work of the said Church was already over and only remains of doom is existing, rejected the petition filed by the petitioner therein by observing that no purpose would be served by directing the Government to consider the representation of the petitioner therein seeking for the relief as stated supra. 25. Thus, by considering all the facts and circumstances of the case, I am of the firm view that the order of eviction should be sustained against the petitioner, as I find no merits in the civil revision petition. Accordingly, the same is dismissed and the petitioner/tenant is granted three months time to vacate and hand over vacant possession of the petition property to the respondent/landlord. No costs. The connected miscellaneous petition is closed.