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CASE NO.: Writ Petition (civil)  1829 of 2007

PETITIONER: VISHWAMITRA RAM KUMAR

RESPONDENT: M/S VESTA TIME COMPANY

DATE OF JUDGMENT: 05/04/2007

BENCH: H.K. SEMA & P.K. BALASUBRAMANYAN

JUDGMENT: J U D G M E N T  CIVIL APPEAL NO.      1829  OF 2007 (Arising out of SLP(C) No.19290 of 2005) {WITH C.A. No(s). 1830,1831,1832,1833,1834,1835 of 2007 [@ SLP  [C] No. 1707/2006, SLP[C] No. 1708/2006, SLP[C] No.  1709/2006, SLP[C] No.1710/2006, SLP[C] No.1713/2006, and  SLP[C] No.1714/2006}

P.K. BALASUBRAMANYAN, J.

                1.              Leave granted. 2.              Seven suits were filed by the landlord of a line  building consisting of eight rooms, for eviction of the tenants  on the ground of rebuilding under Section 13(1)(f) of the West  Bengal Premises Tenancy Act, 1956 (hereinafter referred to as,  "the Act").  The relevant pleading in the plaint was not happy  and the claim for rebuilding was mixed up with the  requirement for own occupation, a ground covered by Section  13(1)(ff) of the Act.  At the stage of trial or even before, the  landlord gave up the claim under Section 13(1)(ff) of the Act of  reasonably requiring the suit premises for its own use and  purpose.  It may be mentioned that the landlord is said to be a  partnership firm.

3.              In support of the claim for eviction under Section  13(1)(f) of the Act, it was pleaded that the building was 100  years old; that it was situate in a mixed locality but mainly  residential; that even at the time of the purchase of the  building, the intention of the landlord was to reconstruct the  building and occupy a portion of it, being the upstair portion  of the building; that the claim for eviction on the ground of  rebuilding was bona fide; and that the landlord was entitled to  a decree for eviction considering the entire circumstances  available.  It was also disclosed that one of the rooms in the  building was in the possession of the landlord, the same  having been surrendered by a tenant earlier and that after  reconstruction, the landlord would be in a position to provide  separate rooms to the seven tenants remaining, but that the  area to be given to each tenant, would be only 30% of what  they now held in the building.  It was also brought out that the  entire land was occupied by the building and there was not  even a staircase to go to the roof of the building and the only  way to reach the roof was by the use of a ladder.  It was  further brought out that as per the rules existing, a car  parking facility in the basement has to be provided and  construction could be only in about 55% of the area presently  occupied by the 100 years old building.  In evidence, one of  the partners examined on behalf of the landlord stated that

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the landlord was willing to give 30% of the area presently  occupied by each tenant in the reconstructed building and the  landlord proposed to occupy the first, second and third floors  intended to be put up, leaving the ground floor for occupation  by the tenants.

4.              The tenants resisted the separate suits.  They  questioned the bona fides of the claim made by the landlord.   They pointed out that the landlord having given up the claim  for eviction on the ground of own occupation had become  disentitled to any relief at all in the suits since the need for  rebuilding was interlinked with the need for own occupation  projected in the plaint.  While being examined, the landlord  was asked questions about the financial capacity to rebuild  and even questions on the title of the firm as set up in the  plaint.  In his evidence, one of the tenants examined, stated  that the building did not require reconstruction and that it  was not possible to carry on the business that is being carried  on in the building in only 30% of the area presently occupied  by that tenant.  It was brought out that out of the seven  tenants, one was running a Pan Shop and the other six were  running watch sales cum repair shops.  

5.              The suits were jointly tried and disposed of by a  common judgment by the trial court.  The trial court held that  the plaintiff firm was the owner of the building and there  subsisted the relationship of landlord and tenant between the  firm and the tenants.  It further held that the premises is a  one storeyed building having no vacant space on the side,  back or front and the building covered the entire land.  The  building had no staircase of its own for going to the roof and  one had to put up a ladder to climb on to the roof.  The suit  building was situated in a predominantly commercial area.  It  was evident that the proposed building will have a car parking  space in the basement and the ground floor will be used for  shop rooms and the upper floors will be for residential  purposes.  It was also evident that the landlord would be able  to accommodate the existing tenants in the ground floor only  to the extent of 30% of the area at present in their occupation.   Though the building was 100 years old, the landlord had not  got the building inspected by any Engineer to report about the  physical condition of the building.  The trial court rejected the  claim for eviction by finding that the requirement for  rebuilding has not been established by the landlord.   The trial  court also found that the landlord had not shown the financial  capacity to rebuild. The suits were dismissed.  The landlord  filed appeals in the High Court.  In the appeals, the landlord  invoked Order XLI Rule 27 of the Code of Civil Procedure  seeking to adduce additional evidence in that court in the form  of a renewed approved plan for the construction of the  building and documents for allegedly showing the financial  capacity of the landlord to rebuild.  The High Court took the  view that no ground was made out for permitting the adducing  of fresh evidence in appeals.  The High Court, reiterating the  reasons given by the trial court, dismissed the appeals.  The  High Court was of the view that since the plaintiff had  abandoned its case of reasonable requirement of the suit  premises for a residential purpose, it became apparent that it  had no reasonable requirement for the purpose of rebuilding  the suit premises upon demolition of the existing structure.   Even while affirming the finding that the building was 100  years old, the High Court held that there was no evidence  about the condition of the building, which would enable the  court to hold that the claim for rebuilding, upon demolition of  the existing structure, was a reasonable necessity. After

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noticing Section 18A of the Act which entitled the tenants in  case of eviction for rebuilding, to get back the building after  reconstruction, the High Court held that the landlord had not  made out a case for grant of a decree for eviction under  Section 13(1)(f) of the Act.  It proceeded to say that no order  was required to be passed on the application under Order XLI  Rule 27 of the Code seeking permission to adduce additional  evidence, in the light of the finding that the landlord had not  made out a case for rebuilding.  It was thus that the decrees of  the trial court were confirmed and the appeals dismissed.  

6.              Section 13(1)(f) of the Act providing one of the  grounds for eviction reads:  "13(1)(f).      Subject to the provisions of sub- section (3A) and Section 18, where the  premises are reasonably required by the  landlord for purposes of building or rebuilding  or for making thereto substantial additions or  alterations, and such building or rebuilding or  additions or alterations, cannot be carried out  without the premises being vacated."

Section 18A of the Act confers a right on the tenant who is  evicted under Section 13(1)(f) of the Act, to be restored to  possession in the reconstructed building as laid down therein.   The court has to specify, while passing a decree for eviction  under Section 13(1)(f) of the Act, the period within which the  rebuilding has to be done, subject to a right in the court to  extend the time in appropriate cases.  On completion of the  building, the premises has to be offered to the tenant. If the  landlord does not put the tenant in possession, the tenant is  entitled to approach the Rent Controller for a direction in that  behalf and for consequences arising therefrom.  In other  words, the Act confers a right on the tenant evicted under  Section 13(1)(f) of the Act to be put back in possession of the  premises after its rebuilding.  The provision also contemplates  that in appropriate cases, the tenant may be put in possession  of such part of the rebuilt premises as the Rent Controller may  specify.  As there is no argument based on Section 13(3A) of  the Act, it is not relevant for the disposal of these appeals.  

7.              Learned counsel for the plaintiff - appellant  contended that the trial court and the High Court were in  error in dismissing the claim for eviction under Section 13(1)(f)  of the Act especially in the context of the law laid down by this  Court in VIJAY SINGH ETC. ETC. . Vs. VIJAYLAKSHMI  AMMAL [(1996) Supp. 7 S.C.R. 385].  It is submitted that it  was not necessary for the landlord to show that the building  was about to fall down while seeking a decree for eviction  under Section 13(1)(f) of the Act.  All relevant circumstances  had to be considered while entertaining a claim under Section  13(1)(f) of the Act.  The bona fides of the claim of the landlord  in the context of whether the object was only to get rid of the  tenants, the age and condition of the building, the financial  position of the landlord to demolish and erect a new building,  the locality in which the building is situated are all relevant  aspects to be considered by the court.  Here, the court had  misunderstood the case of the landlord and has erred in  proceeding on the basis that since the landlord has given up  his claim for eviction under Section 13(1)(ff) of the Act for own  occupation, the landlord could not pursue his claim for  eviction under Section 13(1)(f) of the Act.  Learned counsel  submitted that what the landlord has given up was the need to  occupy the entire building after reconstruction and had  expressed his willingness to give back the ground floor to the

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tenants by confining his claim to one under Section 13(1)(f) of  the Act.  The decrees declining relief call for interference.   Learned counsel for the tenants on the other hand submitted  that the trial court and the High Court have rightly construed  the pleadings in the plaint and have correctly understood the  consequences of the landlord giving up its case for eviction on  the ground of own occupation.  The two claims were  inextricably interlinked in the case and when one of them falls,  the other had automatically to fall.  Even otherwise, the  landlord had not established that it had the financial capacity  to rebuild.  The building was structurally sound.  The offer to  put the tenants back in possession of 30% of the areas now  occupied by them, was not in consonance with the spirit of  Section 18A of the Act.  Though a tenant may not be in a  position to insist that he must have the identical area in the  reconstruction building also, when the whole area could not  be reconstructed in the light of the relevant building laws, that  would not mean that the tenants will be unreasonably  deprived of the areas in their possession just to suit the  convenience of the landlord. The High Court was also justified  in not permitting the landlord to adduce additional evidence in  the appeals and even otherwise, what was sought to be  produced as additional evidence was inadmissible material  and it did not in any manner show that the landlord had the  financial capacity to reconstruct the building as proposed.  

8.              During the course of the hearing, it was submitted  on behalf of the landlord that the landlord was in occupation  of 700 square feet as surrendered by one of the tenants and  the landlord was willing, while reconstructing the ground floor,  to give the remaining tenants that area also with the result  that the areas to be put in their possession would be  something more than 30% of the present areas occupied by  them.  It was submitted that the carpet area at present  available was 2200 square feet and after reconstruction, it  would come to 738 square feet only and this entire area other  than the area needed for constructing a convenient staircase,  the landlord was willing to divide among the tenants thus  giving up 236.50 square feet which the landlord was entitled  to keep proportionately.  It was submitted that only a  convenient area needed for the construction of a staircase for  going upstairs would be retained by the landlord.  On behalf of  the tenants, it was submitted that the tenants were willing to  suffer decrees for eviction provided the landlord was willing to  give them equal areas in the reconstructed building and that  any reduction in the respective areas occupied by tenants  would practically put them out of business and hence the  tenants were not in a position to agree to decrees for eviction.   It was pointed out that the landlord had not made a bona fide  attempt to ensure that a plan for rebuilding is prepared  causing the least prejudice to the tenants as is evident from  the evidence of the Architect P.W. 5 and in that context, the  present offer was not a reasonable one which could be  accepted by the tenants.  

9.              The law on the adjudging of a claim for eviction by a  landlord on the ground of reconstruction or rebuilding is  settled.  In Neta Ram Vs. Jiwan Lal [(1962) Supp. 2 S.C.R.  623], this Court held: "The Controller has to be satisfied about the  genuineness of the claim. To reach this  conclusion, obviously the Controller must be  satisfied about the reality of the claim made by  the landlord, and this can only be established  by looking at all the surrounding

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circumstances, such as the condition of the  building, its situation, the possibility of its  being put to a more profitable use after  construction, the means of the landlord and so  on. It is not enough that the landlord comes  forward, and says that he entertains a  particular intention, however strongly, said to  be entertained by him. The clause speaks not  of the bona fides of the landlord, but says, on  the other hand, that the claim of the landlord  that he requires the building for reconstruction  and re-erection must be bona fide, that is to  say, honest in the circumstances. It is  impossible, therefore, to hold that the  investigation by the Controller should be  confined only to the existence of an intention  to reconstruct, in the mind of the landlord.  This intention must be honestly held in  relating to the surrounding circumstances."

In Kalliani & ors. VS. Madhavi & ors. [1970 K.L.T. 257], a  learned judge of the Kerala High Court (as he then was) after  referring to the decision in Neta Ram (supra) stated: "It is obvious, therefore, that a wider and more  realistic meaning must be given to the  expression "condition of the building". The  social purpose of this provision is to remove  the road blocks in the way of progress in  building programmes.  Old structures in newly  developing areas may be like pimples on fair  faces.  Replacement and renewal of  obsolescent and unsightly buildings to make  room for larger, modern constructions is a  social necessity, provided existing tenants are  not thrown into the streets.  The "condition of  the building" is a larger concept which  includes considerations of social surroundings  and allied factors.  Where the building is very  old and incongruous with the social setting  and the surroundings of the place, the Court  has got to take a more liberal view in applying  the provision of law.  However, the primary  purpose of the statute viz., prevention of  unreasonable eviction must also inform the  Court when applying this provision."

In Vijay Singh (supra), a Constitution Bench of this Court  held: "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."

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The principle stated in Vijay Singh (supra) was followed in S.  Venugopal Vs. A. Karruppusami & Anr. [(2006) 4 S.C.C.  507], wherein the developments in the surroundings areas was  also taken into consideration while adjudging the bona fides of  the claim for eviction on the ground of reconstruction.  

10.             Applying these tests to the facts of the present case,  what do we get?  The building is admittedly 100 years old.  It  is a single storeyed building.  There is no access by way of a  staircase to go to the roof of the building.  The actual structure  occupies the entire land leaving no further option for addition  to the existing structure.  The building is in a fairly important  locality in the city of Calcutta. The area appears to be an area  of mixed use, not totally residential, not totally commercial.  In  this context, the landlord pleads that he requires the building  for putting up a four storeyed building after demolishing the  existing structure.  He points out that as per the present  Building Rules, he has to have a basement for car parking and  he can have a construction only in about 55% of the area of  the land available.  He intends to give the existing tenants  corresponding areas in the ground floor but reduced to 30% of  the area currently in their occupation in view of the building  restrictions and intends to use the other floors for the  residential purposes of the landlord. The landlord is a firm of  which two brothers are partners.  As against this, what is  pointed out is that the landlord has not made available any  evidence to show that the building was in such a physical  condition that it required reconstruction.  There was nothing  to show that the building was structurally weak.  The landlord  was a builder and his idea was merely to evict the tenants and  this is clear from his original claim for eviction on the ground  of bona fide need for own occupation under Section 13(1)(ff) of  the Act, which was subsequently given up.  The landlord had  not led clear evidence to show that the firm has or the  partners have the means to construct the proposed new  building.   No doubt, the landlord has an approved plan, the  period of validity of which stood subsequently extended, but in  the proposed building, the tenants are to be allotted only areas  equivalent to 30% of the areas presently occupied by them.   This would make it impossible for the tenants to carry on their  existing businesses and the circumstances taken as a whole,  would show that the claim of the landlord was not bona fide  but was a mere pretext for evicting the tenants. 11.             We find that the trial court and the High Court  were, to a great extent, carried away by the fact that the  landlord gave up his claim for eviction under Section 13(1)(ff)  of the Act, even while attempting to pursue his claim for  eviction under Section 13(1)(f) of the Act.  No doubt, there is  some confused pleading by the landlord in the plaint by  mixing up the claim for eviction under Section 13(1)(ff) and  Section 13(1)(f) of the Act.  But all the same, by the time the  matter came up for trial, both sides knew that the claim was  based solely on the ground under Section 13(1)(f), namely,  bona fide need for rebuilding after demolition of the existing  structure. The landlord had realised his obligation to put the  tenants back in possession in terms of Section 18A of the Act.   Therefore, when the parties went to trial, the issue was really  the claim for eviction under Section 13(1)(f) of the Act and it  was so understood by both the parties.  

12.             No doubt, the landlord still intends to occupy the  floors other than the ground floor for residential purposes.  But, so long as he is in a position to satisfy the requirement of  Section 18A of the Act consistent with the building to be put

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up in terms of the relevant building laws, it could not be held  that the claim for eviction on the ground of rebuilding is not  bona fide.  After all, the building is 100 years old.  It is  situated in a growing city like Calcutta and it is fetching a  meagre income for the landlord by way of rents.  Surely, an  intention to put the building to better use by way of earning  better income consistent with the developments in the locality,  cannot be held to be not a bona fide intention, unless of  course  there is some clear material negativing the bona fides  of such an intention. We do not see anything in the present  case which would militate against the bona fides of that  intention of the landlord.  Coupled with this, is the fact that  the landlord wants to occupy the upstair portions of the  building after reconstruction.  Clearly, he cannot do so now,  by building over the existing structure, in view of its location  and in view of the absence of a staircase to go upstairs and the  age of the structure.  It is no doubt true that a shop room is in  possession of the landlord, the same having been vacated by a  tenant and the claim for eviction relates to the other seven  rooms in the possession of tenants.  Even if a staircase is  provided in that portion in the possession of the landlord, the  question still remains whether he could be permitted to put up  one or more floors in the building as proposed by him in view  of the relevant Building Rules and their possible violation.   Thus, viewed from these angles, which are relevant  considerations as indicated by the decisions referred to by us  earlier, it cannot be said that the need put forward by the  landlord is not a bona fide one.  We are therefore of the view  that the High Court and the trial court were not justified in  finding that the bona fides of the claim under Section 13(1)(f)  of the Act for eviction of the tenants is not made out by the  landlord.

13.             The landlord in his evidence has held out that he  has the means to undertake the reconstruction.  Before the  Appellate Court, he has also produced some evidence in that  regard.  These are days when finances for such construction  activity are more easily available as judicially noticed by one of  the decisions.  We see no justification for doubting the  financial capacity of the landlord to rebuild.  The landlord has  shown that he has got the validity of the approved plan for  rebuilding extended.  The High Court, in our view, was not  justified in not accepting the evidence produced by the  landlord in appeal.  We are satisfied that the landlord has  made out the ground for eviction under Section 13(1)(f) of the  Act on the facts and in the circumstances of the case.  We  reverse the finding of the High Court in that regard.  

14.             Under Section 18A of the Act, the landlord in a case  of eviction under Section 13(1)(f) of the Act has the obligation  to put the tenants back in possession of rooms in the  reconstructed building, that is an obligation attached to any  decree for eviction that may be passed under Section 13(1)(f) of  the Act.   Certainly, any attempt to defeat that obligation  under Section 18A of the Act cannot be encouraged and  should be put down with an iron hand. In other words, the  landlord will be pinned down to his obligations under Section  18A of the Act and would not be allowed to extricate himself  from it or delay the performance of his obligations by resort to  devious means.  But, that is different from saying that because  of the right available to the tenant under Section 18A of the  Act, an order for eviction under Section 13(1)(f) of the Act  cannot be passed unless the building is about to fall down  over the head of the occupant.

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15.             It is the case of the landlord that under the present  Building Rules, he has to use the basement for providing  parking space and construction can be made only in about  55% of the land available on demolition of the existing  building.  It is not shown that this claim is not true, or that it  is unsustainable.  No doubt, P.W. 5 was not instructed to  prepare the plan with the obligation to the tenants in mind.  It  is the further case of the landlord that the landlord is in a  position to provide the tenants, seven in number, only with  areas roughly corresponding to 30% of the areas occupied by  them.  The landlord has offered that the area in its possession  on the ground floor, could also be made available to the  tenants.  Even then, the area available to the tenants would  fall short of the areas that are now in their possession or that  may normally be allotted to them. When the new construction  to be put up consists only of a plinth area of about 55% of the  existing construction, it will be reasonable for the tenants to  be expected to be put back in possession of at least 50% of the  areas now in their occupation.  According to the landlord, he  proposes to provide all the tenants with rooms in the ground  floor.  It is seen that one of the rooms is occupied by a tenant  who runs a Pan Shop therein and he is at present in  occupation of an area of 5 square feet only.  Two of the tenants  are in occupation of only about 62 square feet; one of the  tenants is in occupation of 184 square feet and another in  occupation of 292  square feet.  One of the tenants is in  occupation of 315 square feet and the other is in occupation of  580 square feet.  The landlord has also to provide a staircase  or a lift well and for that reasonable space on the ground floor  is required.  We think that it will be appropriate to direct the  landlord to slightly alter his plan so that after accommodating  the tenant running a Pan Shop in a small area, the rest of the  tenants could be provided with 50% of the areas now occupied  by them, by accommodating, if need be, one or two or three of  them (tenants holding the larger extents) on the first floor.  For  this, the landlord will seek a slightly modified plan from the  concerned Authority which will grant it expeditiously in the  interests of the tenants and will ensure that all the Building  Laws are respected by the landlord while constructing.  The  modified plan will be produced by the landlord before the trial  court so as to enable that court to pass formal decrees for  eviction and consequential orders for the tenants being put  back in possession in the reconstructed building as directed  above in terms of Section 18A of the Act.  We trust that the  concerned Authority when approached in that behalf will take  note of the fact that our direction is in the interests of the  sitting tenants in the building and that the little modification  needed in the Plan is permitted without violating any of the  Building Laws.  If the Plan as such does not require any  alteration in the light of our directions as per the relevant  Building laws treating it as only an internal adjustment of the  space on the ground floor and on the first floor, it will be open  to the landlord to adopt such stand before the trial court and  seek decrees for eviction with consequential directions in  terms of Section 18A of the Act.  In that case, the trial court  will satisfy itself on that aspect.  We are sure that the trial  court will expedite the passing of formal decrees for eviction in  terms of Section 13(1)(f) of the Act in the context of Section  18A of the Act by imposing whatever conditions that are  required in terms of the statute.  

16.             We therefore allow these appeals and hold that the  landlord is entitled to decrees for eviction under Section  13(1)(f) of the Act.  We direct the trial court to expeditiously  pass decrees and consequential orders in terms of Section 18A

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of the Act when moved in that behalf by the landlord.  We  direct the trial court to pass the consequential decrees within  three months of it being approached either with the existing  plan or with the modified plan by the landlord as we have  directed above.  The parties will appear before the trial court  for seeking appropriate directions for further appearance on  14.5.2007.