Daniel vs M.G. George

Varghese Kalliath, J.—This revision petition is u/s 20 of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as ''the Act''). Three tenants occupying three rooms of a building are the revision Petitioners. Landlord filed petition for eviction under Sections 11(2)(b) and 11(3) of the Act. Now we are concerned only with the ground u/s 11(3) of the Act. Landlord claimed eviction for bona fide need for own occupation on the basis that he has constructed a multi-storeyed building just behind the building occupied by the tenants. The buildings constructed is in the city of Thiruvananthapuram and it is in an important locality. The multi-storeyed building was constructed after obtaining the due permission and licence from the Corporation on condition that the landlord will provide sufficient space for car parking for the multi-storeyed building. Landlord submitted that only if the building occupied by the tenants is demolished and that space is also used for the purpole of car parking, the conditions stipulated for giving the licence can be fulfilled.

The rent control court after a thorough investigation of all the circumstances and the evidence adduced in the case, came to the conclusion that the landlord has established the bona fide need as contemplated u/s 11(3) of the Act. The appellate authority also on a reappraisal of the evidence in a very detailed and reasoned judgment confirmed the order of the Rent Control Court. Now, the tenants have filed this Civil Revision Petition.

As regards the bona fide need, it is a concurrent finding. The bona fide need is always a question of fact. Of course, in certain circumstances it may be a question of fact and a question of admixture of facts and law. In this case, on facts, viz., that the landlord requires space for car parking for his multi-storeyed building, there is no dispute. Further it is found that the car parking area can be provided only if the building in dispute is demolished and the area occupied by the building is generally required for car parking. Faced with this reality of the factual situation, counsel for the revision Petitioners submitted that on a proper interpretation of the provisions contained in Section 11(3) of the Act read with Sub-section (12) of Section 11 should not admit of a case of bona fide need for own occupation of a building for the purpose of demolition of the same for the occupation of the space occupied by the building. Section 11(3) of the Act provides that a landlord has got the entitlement to seek eviction of a tenant if he bona-fide needs the building for his own occupation of for the occupation by any member of his family dependent on him.

The bona-fide need of the landlord for his own occupation was the subject matter of interpretation of several decisions of this Court. Counsel submitted that the bona fide need for own occupation of a building has to be confined to the need of the building itself, in other words if an eviction is sought for demolition of the building and to occupy the space it will not come within the purview of Section 11(3) of the Act. This question was considered in three decisions of this Court. Justice Mathew considered this question in P.A. Mohammed Kannu v. H.A. Asanar Kunju (1965) 1 K.L.R. 323. Justice Krishnamoorthy Iyer had occasion to consider the very same question in 1969 KLT 133 (Sarada v. M.K. Kumaran). Justice Krishnamoorthy Iyer followed the decision of justice Mathew in Sarada''s case 1969 KLT 133. Justice K.T. Thomas considered the question in 1988 (1) KLT 131 (Krishna Menon v. District Judge). Justice Thomas has referred to the decision reported in 1969 KLT 133 and approved it. In 1988 KLT 131 it was contended that the decision reported in 1969 KLT 133 requires reconsideration, but justice Thomas declined to refer the case to a Division Bench holding that there cannot be any doubt about the correctness of the decision reported in 1969 KLT 133.

Justice Mathew in Asanar Kuju''s case (1965) 1 K.L.R. 323 held that: "If the Petitioner bona fide needed the building for his own occupation-and the finding of the Rent Control Court is that he so needed it,-the Petitioner was entitled to recover possession of the building notwithstanding the fact that he has to demolish the present building and reconstruct it for the purpose of such occupation. The fact that the building requires reconstruction for the purpose of occupation does not mean that the Petitioner, does not require it for his own occupation. In other words the purpose of the occupation may be such that building may have to be demolished and reconstructed; that does not mean that the landlord''s claim is not u/s 11(3)". Justice Krishnamoorthy Iyer held that the bona fide need for own occupation u/s 11(3) of the Act would take in if the need is to provide a passage through the site on which the original structure stood after its demolition. In holding such a view, justice Krishnamoorthy Iyer interpreted the word Occupation'' thus: "The word ''occupation'' does not necessarily refer to pccupation as residence. An owner can occupy a place by making use of it in any manner. The fact that the pathway is intended to him does not mean that the landlord will not be in occupation of the same". Further, the learned judge said that the term ''building'' generally, though not always, implies the idea of a habitation for the permanent use of man; or an erection connected with his permanent use. It imports tangibility and may include the land on which it stands as well as adjacent land. The definition of the term building under the Act is not precise and an exhaustive definition of the term is also not possible. The meaning of the word ''building'' "in ordinary language, comprises not only the fabric of the building, but the land Upon which it stands". The landlord for the purposes of the pathway is only going to demolish the superstructure or the edifice enclosing the space.

In Krishna Menon''s case (1988) (1) K.L.T 131 almost identical situation as the case at hand was considered by Justice Thomas. Here as in this case, landlord wanted demolition of the building occupied by the tenant for the purpose of providing car parking area for the multi-storeyed building constructed in the rear portion of the building in question. It was contented that the need contemplated u/s 11(3) of the Act will not encompass any other need for which the building is used and it does not envisage the demolition of the building and using the space occupied by the building. Justice Thomas declined to accept this contention and followed the decision reported in 1969 KLT 133.

Counsel for the revision Petitioners submitted that Justice Thomas, in considering the question, did not take note of Sub-section (12) of Section 11 of the Act. This submission is not correct. In paragraph 4 of the judgment, the learned Judge has considered the interaction of Sub-section (12) with Sub-section (3) of Section 11 of the Act on the question involved in this case and, said that in both the sections the word used is ''occupation'' and the occupation by the landlord can be the space occupied by the building in dispute for the bona fide purpose of the landlord. Sub-section (12) of Section 11 of the Act provides remedies for the tenant, if the landlord does not occupy the building without reasonable cause within one month of the date of obtaining possession, or if he vacates it without reasonable cause within six months of such date. It has to be remembered that the Act provided the definition of building to include the garden, grounds, wells, tanks and structures, if any, appurtenant to such building, hut or part of such building or hut, and let or to be let along with such building or hut. The definition of building also takes in part of a building. The definition begins with ''unless the context otherwise requires'' thereby indicacing that the definition is not exhaustive. If part of a building is a building, it is possible to say that the space occupied by the building is also part of the building. Occupation of the building contemplated u/s 11(3) as well as Section 11(12) of the Act would take in occupation of the space occupied by the building.

Justice Thomas in Sarada''s case 1969 KLT 133 held that a narrow interpretation of Sections 11(3) and 11(12) of the Act with respect to the building would work injustice when wider interpretation is not barred by the language of the section and "if two constructions are possible upon the language of the statute, the court must choose the one which is consistent with good sense and fairness and eschew the other which makes its operation unduly oppressive, unjust or unreasonable or which would lead to strange, inconsistent results. or otherwise introduce an element of bewildering uncertainty and practical inconvenience in the working of the statute". (See Dilip Kumar Sharma and Others Vs. State of Madhya Pradesh, . We are in full agreement with the decisions reported in 1988 (1) KLT 131 and (1965) 1 KLT 323. A case of demolition of the tenanted building and puting up a new building by the landlord .was found to be not outside the ground for bona fide need for own occupation in a similar provision by the Supreme Court in Bombay Rents, Hotel and Lodging House Rates Control Act. In Ramnikal Pitambardas Mehta Vs. Indradaman Amratlal Sheth, rejecting the contention of the tenant their Lordship observed thus:

There mere fact that he (the landlord) intends to make alterations in the house either on account of his sweet will or on account of absolute necessity in view of the condition of the house, does not affect the question of his requiring the house bona fide and reasonably for his occupation, when he has proved his need For occupying the house. There is no such prohibition either in the language of Clause (g) or in any other provision of the Act to the effect that the landlord must occupy the house for residence without making any alterations in it. There could not be any logical reason for such a prohibition. Under ordinary law, the landlord is entitled to eject his tenant whenever he likes, after following certain procedure except in cases where he has contracted not to eject him before the happening of a certain event. The Act restricts that general right of the landlord in the special circumstances prevailing in regard to the availability of accommodation and the incidental abuse of those circumstances by landlords in demanding unjustifiably high rent... Section 13 provides exceptional cases in which the landlord can eject the tenant even though he had been paying rent regularly or be ready ana willing to pay rent. The provisions of Section 13 are for the advantage of the landlord and the various grounds for ejectment mentioned in that section are such which reasonably justify the ejectment of the tenant in the exercise 6f the landlords general right to eject his tenant. There is therefore no reason why restrictions not mentioned in the grounds be read into them. We do not therefore agree with the contention that Clause (g) Will apply only when the landlord bona fide needs to occupy the premises without making any alteration in them i.e., to occupy the identical building which the tenant occupies. There is no justification to give such a narrow construction either to the word ''premises'' or to the word ''occupies'' which have been constructed by this Court in Krisknal Ishwarlal Desai v. Baji Vijkor, Civil Appeal No. 804 of 1962 D'' 18th January 1963 referred to later.

We cannot accept the argument of counsel for the revision Petitioners that in the circumstances, the ground u/s 11(3) of the Act is not attracted.

Counsel submitted that the tenants are entitled to get protection under the second proviso to Section 11(3) of the Act. Both the statutory authorities found that the second proviso to Section 11(3) of the Act is not attracted on the facts and circumstances unfolded in the case. The burden of proof under the second proviso is on the tenants. In this case the statutory authorities found that the tenants did not discharge their burden satisfactorily. We do not see any ground to interfere with that finding of fact, in view of the fact that we are exercising a limited jurisdiction u/s 20 of the Act. Further, in the matter of concurrent finding it has to be remembered that though affirmation of the first appellate authority of a crucial fact found by the trial court insulates the verdict with no inerrability, but since absolute objective certainty is impossible in the decision process in this imperfect world, there is plain and perfect justification on practical reasons to unopen the pylon when the first two Judges concur in the factual conclusion at separate levels. Court''s prime concern is to avoid miscarriage and failure of justice. Miscarriage and failure of justice may take different forms; a re-evaluation of the evidence or a re-appreciation of the evidence at the third tier of the litigation and a finding of fact different from that of the Rent Control Court in revision u/s 20 of the Act may constitute a plain injustice in law to one of the parties.

Further we have to note that the landlord has offered three rooms in the ground floor of the multi-storeyed building constructed by the landlord with modifications namely by providing shutters in the place of the windows for the occupation of the revision Petitioners. The appellate authority made it a condition that the tenants shall not be evicted until suitable modifications are made in the rooms offered and provided to the revision Petitioners for their occupation. of course, counsel submitted that the access to these rooms will not be the same access the revision Petitioners were getting in regard to the disputed building. It cannot be said that the rooms offered are not in the same locality and will not suit the purpose of the evicted tenants. On the whole, we find that the gesture of the landlord in making a voluntary offer of three rooms to the tenants in the new building, deserves appreciation since he is not legally bound to do so. It has to be remembered that the landlord is not obliged to offer accomodation for the extenants if he has established the conditions u/s 11(3) of the Act and the tenant/tenants has/have failed to establish the requirements under the second proviso to Section 11(3) of the Act.

In the circumstance, we see no merit in the Civil Revision Petition and it is only to be dismissed. We do so.