Lakshmi vs Labbah Kunju Ameer Hamsa

R. Bhaskaran, J.—The landlord is the petitioner in this revision. He filed R.C.P. No. 5 of 1996 under Sections 11(2)(b), 11(3), 11(4)(ii) and 11(4)(10) of Act 2 of 1965. Both the Rent Control Court and the Appellate Authority dismissed the application on all the grounds. Though there was no specific claim made u/s (4)(iv) of the Act, both the Rent Control Court as well as the Appellate Authority have proceeded on the basis that the claim for eviction was also made under that provision. Sections 11(3) and 11(4)(iv) are intended for different purposes. Whereas u/s 11(3) eviction is required for bonafide need of own occupation or for occupation by any member of the family depending on the landlord, Section 11(4)(iv) is intended in a case where the building requires reconstruction and the tenant gets a right to get an equivalent area in the reconstructed building. In this case, not only the landlord did not quote Section 11 (4)(iv) in the Rent Control Petition but he also did not offer either in the petition or in evidence any portion of the reconstructed building to the tenant. Therefore, this was a case where the courts below should have considered the question of bonafide need alone. But having considered the case of the landlord u/s 11(4)(iv) also we will advert to that aspect as well in this order. The material averments in the Rent Control Petition are as follows.

The tenancy commenced on 25-11-1980 at Rs. 600/- per month. There were earlier Rent Control Petitions on the ground of arrears of rent, the orders on which were got vacated by subsequent payment. The rent was increased to Rs. 25/- per day in 1984. From 1-1-1995 onwards, the rent was in arrears. The tenant has materially altered the nature and character of the building by filling soil in the rooms on the north and western sides of the building and reduced the height of the roof, removed the doors in the inner side of the rooms and refitted the same according to his wish and removed wooden doors and fitted glass panes. One of the petitioner''s sons, Ramabhadran working in a Gulf Country is intending to return to India and commence a hotel business in the building that may be newly constructed after demolishing the existing building. For that purpose, he has no place of his own and he is depending on the petitioner for accommodation and the petitioner bonafide needs the same for his occupation. He has also stated that the condition of the building is such that it needs reconstruction. It is situated in an important locality. The petitioner has submitted a plan to the local authority and it will be produced as and when it is obtained. He has got the capacity to make such construction.

In the objections filed by the tenant all the averments in the Rent Control Petition are specifically denied. There is no arrears of rent and no material alterations made to the building. The bonafide need alleged is a cock and bull story. He has no such need. He is not depending on the father for the purpose of the building. The petitioner has another building in his possession in the very same town. The tenant is depending on the income from the petitioner building and there is no other building available for him to occupy.

As already mentioned, both the courts found against the claim of the landlord. The points for consideration are:

i) whether there was arrears of rent and denial of eviction u/s 11 (2)(b) was justified-

ii) whether the tenant used the building in such a way as to reduce its utility permanently,

iii) whether the bonafide need set up is genuine,

iv) whether an order of eviction can be granted u/s 11 (4)(iv) of the Act.

Point No. 1

Ext.A2 notice was sent on 2-11-1995 claiming rent in arrears from 1-1-1995. Therefore, the rent in arrears is of ten months at the rate of Rs. 25/- per day. The total amount was calculated at Rs. 7,675/- out of which the tenant paid property tax of Rs. 2,276.80. There is no other payment found by the courts below. Therefore, it is a case where there was still large amounts remaining unpaid. When there was no proof of payment of the entire rent claimed in the notice, there was no justification at all for not awarding an order of eviction u/s 11 (2)(b) of the Act. Hence we set aside that part of the order of the courts below and order eviction on the ground of the arrears of rent.

Point No. 2

The learned senior counsel appearing for the petitioner relied on the decision of the Supreme Court in Gurbachan Singh and another Vs. Shivalak Rubber Industries and others, and pointed out that impairment of value and utility must be judged from the point of view of the landlord. Regarding material alterations, the Commissioner has reported that the minor act alleged to have been done by the tenant has not all resulted in diminishing the value and utility of the building. In fact when PW.1` was examined he has admitted that he was not aware of the actual condition of the building before it was let out to the tenant and he was seeing the inside of the building at the time of Commissioner''s visit. There is no other evidence to substantiate the allegation in the Rent Control Petition. Both the courts have assessed the evidence and found against the claim. Minor alterations even if made by the tenant to suit his hotel business is no ground for ordering eviction as held by this Court in Aboobacker v. Nanu ( 2001 (3) KLT 815) and by the Supreme Court in Om Prakash Vs. Amar Singh and Others, . Nothing has been brought to our notice to hold otherwise and hence we confirm the concurrent findings on Section 11(4)(ii) of the Act.

Point No. 3

This, according to us, is the most important point to be decided in this case. Relying on the decision in Raghunath G. Panhale (Dead) By Lrs. Vs. M/s. Chaganlal Sundarji and Co., , the learned senior counsel, Sri. Venkitasubramonia Iyer, argued that if the findings of the authorities are wrong in law or are perverse this Court can interfere with such findings. As held by the Supreme Court in Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta, , the term "bonafide" or "genuinely" refers to a state of mind. "A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretest to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of the landlord and its bona fides would be capable of successfully withstanding the test of objective determination by the court." In the normal course, there is no necessity to start with a suspicion as to whether the need alleged is genuine when the landlord wants the premises for himself or for any member of his family depending on him.

In assessing the bona fides of the claim, what exactly is the need set up is to be considered. The need alleged is that the building is required for one of his sons to be used as a hotel after demolishing the existing building and reconstructing the same. Neither the landlord nor the son for whose need eviction is sought is examined in court The examination of the landlord or the dependent son is not for the ritualistic purpose of complying with some provision of law but to enable the court to assess objectively the nature of the claim and the bona fides of the claim. Here the excuse given by the landlord''s counsel is that the landlord is aged and the dependent son is in Gulf Country. Therefore, another son is examined in Court. He has not given the details of the business his brother wanted to start. The landlord has produced a copy of the plan submitted before the local authority for approval. A mere look at the plan shows that the proposed building is with five shop rooms facing the road with shutters. There is no evidence as to whether all the rooms are required for his hotel business or as to how many rooms are required by him. The plan does not give any indication for its construction for hotel purpose.

Though in the Rent Control Petition it is stated that the dependent son is intending to come back to India after stopping his employment abroad, in evidence, PW.1 (another brother) has stated that his employment is already terminated. Still he did not come to India. If he wanted to do hotel business only in one or two rooms, he could very well make use of the adjacent building of which two rooms are in the possession of the landlord after demolition and reconstruction and Rent Control Petition was already pending for the third room. We are aware that the tenant cannot dictate to the landlord as to where he should start his business and that he has got the right of option. But this will be relevant only while considering the bona fides of the claim. If as a matter of fact the vacant buildings already available are not suitable for the purpose, the landlord can ask for the petition schedule building also. But there is no such evidence in the case. As held by the Supreme Court in Raghavan v. Govindan Nambiar (1995 (1) KLT 598), the existence of another building vacant affects the very bona fides of the claim. Out of the three rooms, one room is already in a dilapidated condition. There is also no evidence to the purpose for which the Rent Control Petition was filed for the third room in the adjacent land. The Commissioner appointed by the Rent Control Court has submitted a plan and report. They show the plinth area and the number of rooms in the possession of the tenant used for hotel business. The necessary adjuncts of a hotel business like kitchen, storeroom, work area, dining room etc. are all available in the existing building. On the other hand, the proposed building has none of them except two urinals and a row of independent shop rooms without any interconnection between the rooms. It is for the landlord to adduce evidence with regard to the way in which the need will be fulfilled if a building is constructed according to the plan submitted before the local authority. These are the factors taken note of by the fact finding authorities for denying eviction. Can we say that these are irrelevant considerations? A conclusion with regard to the bona fides of the claim has to be arrived at on the basis of all the attendant circumstances and the scope of interference in revision is restricted to cases where the authorities below have relied on irrelevant considerations, ignored valuable items of evidence or applied wrong principles of law or for such other reasons". In Ubaiba Vs. Damodaran, , the Supreme Court has held that the scope of Section 20 of the Kerala Buildings (Lease and Rent Control) Act cannot be equated even with second appellate power though it is wider than Section 115 CPC. The restricted power of interference in revisional jurisdiction is also emphasised in Rukmini Amma Saradamma Vs. Kallyani Sulochana and others, . Therefore, we find that this point is to be answered against the revision petitioners. With regard to the benefit of the second proviso to Section 11(3) of the Act, the finding is against the tenant and nothing has been brought to our notice to hold otherwise.

Point No. 4

Since both the authorities below have considered this as an independent claim, though Section 11 (4)(iv) is not one of the provisions quoted in the Rent Control Petition, we will consider this question also. If the reconstruction is required only for the purpose of enabling the landlord to occupy the reconstructed building, the claim will come u/s 11(3) of the Act only. If on the other hand, the tenant is to be given the option to occupy the reconstructed building the claim will come u/s 11(4)(iv) of the Act. Neither in the petition nor in the evidence such an offer is made by the landlord. In considering the question whether the building requires reconstruction the age of the building or its. stability is not very material as held by the Supreme Court in Jagat Pal Dhawan Vs. Kahan Singh (Dead) by Lrs. and Others, . If on the other hand having regard to the attendant circumstances like the development of the area and the possibility of the landlord to use the premises for better use eviction can be ordered even if the building as such may not require immediate demolition and reconstruction.

u/s 11(4)(iv) of the Act, it is mandatory that he landlord must have the plan and permit required under law for getting an order of reconstruction. It need not be produced along with the application but it can be produced even later. In this case, the approved plan and licence were produced before the Local Authority. They were the same as produced in the Rent Control Court before approval by the Appellate Authority. The requirement of the plan and licence is in the main part of Section 11 (4)(iv) of the Act. It contains three provisos: All the three provisos are for protecting the interest of the tenant who was evicted for the purpose of reconstruction of the building. Therefore, the question whether the proposed building is in any way suitable for the evicted tenant to reoccupy for continuing his business is a material question coming u/s 11(4)(iv) of the Act. No doubt, he may not be able to say that he would pay only the old rent which he was paying for the demolished building, but he will have to pay fair rent for the reconstructed building. But if a tenant doing hotel business in a few rooms belonging to the landlord is evicted for the purpose of reconstruction he must be given back more or less equivalent space with convenience for doing his hotel business. Otherwise, the purpose of the proviso will not be achieved. After analysing the then existing case law on the point, Subramonian Poti, Ag.C.J., (as he then was) has held in Varghese Mathews Vs. Fakir Rawther Abdul Razack Rawther, that even though it may not be possible to say that the tenant must be allotted identical space with identical shape, he must get more or less the same advantages as before. His Lordship also said that the 3rd proviso to Section 11(4)(iv) should not be construed in such a way as to make it illusory or inoperative. The same view was taken by the Supreme Court in K. Srinivasa Rao Vs. K.M. Narasimhaiah and Anr, . After seeing the plan produced by the landlord for the purpose of reconstruction, we are of opinion that the landlord will not be able to give the tenant back with a building with more or less the same advantages of the petition schedule building. Therefore, on this ground also the petitioner is not entitled to succeed.

The rent fixed at Rs. 25/- per day was in 1984 and after 20 years he cannot continue for the same rent. On the basis of the decision of the Supreme Court in R. Appavoo (dead) by L.Rs. Vs. Sree Dharna Vinayakan Dharmaraja Devasthanam, and of this Court in Aboobacker Vs. Vasu, , we direct that till the fair rent is fixed on the application of either of the parties the tenant shall pay from July, 2005 onwards rent at the rate of Rs. 1,500/- per month.

In the result, the revision is allowed and the findings of the authorities below are set aside in so far as the claim for eviction u/s 11(2)(b) of the Act is concerned. Denial of eviction on other grounds is upheld. The parties shall bear their costs in this revision.