Madathil Meethal Krishnan vs Mathikandathil Sukumaran and Others

Mohammed, J.—The landlord in a proceeding for eviction of the tenant under the provisions of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short ''the Act'') is the revision petitioner. The revision is directed against the order of the Rent Control Appellate Authority in R.C. A. No. 1 of 1989 confirming the order of the Rent Controller disallowing eviction on the ground of reconstruction.

The petition for eviction had been filed by the landlord alleging that the petition schedule building was in a dilapidated condition and hence it required to be reconstructed. In the petition for eviction further plea is that the building is located in a busy place where there are buildings of modern type in the surrounding areas and in view of such recent development the petition schedule building required reconstruction. The Rent Controller after evaluating the oral evidence of P.W. 1 and documentary evidence as per Exts. A1 to A8 came to the conclusion that the building requires reconstruction on the ground that new model buildings have come up in the locality. However, the bona fide need claimed by the landlord was doubted and therefore the eviction was disallowed by the Rent Controller.

In appeal u/s 18 of the Act the Rent Control Appellate Authority has considered the decisions of this Court in Vareed Porinchu v. Ouseph 1971 KLT 571 Saramma Varghese and Others Vs. George, Church of South India Trust Association v. Ramanathan 1979 KLT 397 and Balagangadhara Menon v. T. V. Peter 1984 KLT 845. An analysis of the above decisions would bring forth that in a petition u/s 1 (4)(iv) of the Act the Court can have regard to the area where the building is situated, the nature of the developments that are taking place in the locality etc. It is wrong to think that a building needs reconstruction only after it has become irreparable or is about to collapse. It is not the law that the landlord should wait until that stage before he attempts a reconstruction. It is not irrelevant to refer to the local conditions. This in effect is the conclusion arrived at by the Division Bench in Balagangadhara Menon''s case (supra). It must be recalled in this context that the decision in C. Thanka and Others Vs. Narayani, expressing a narrow view was overruled by the Division Bench in the above case. K. K. Mathew, J. (as the learned Judge then was) expressed the view that the Court can have regard to the area where the building is situated, the nature of the developments that are taking place in the area etc. (See ; Ahammad Kanna v. Muhammcd Haneef 1967 KLT 841 In the present case the Appellate Authority found that the building needs reconstruction on account of new development in the locality and that the petitioner has got means for reconstruction of the same. However, the appeal was dismissed on the ground that the claim for reconstruction is nol found to be bona fide.

In this revision filed u/s 20 of the Act we are called upon to examine the records so as to satisfy ourself as to the legality, regularity or propriety of the order of the Appellate Authority or the proceedings in relation thereto. In this context it must be noticed that the extent and scope of the revisional power conferred on us u/s 20 has been restated in a recent decision of a Division Bench of this Court in Raghavan v. Raju, (1998) 2 KLT 394 : 1998 AIHC 4324. The relevant portion of the said judgment is extracted hereunder :

"Before examining the correctness of the impugned judgment of the Rent Control Appellate Authority, we should remind ourselves of the power conferred on us u/s 20 of the Act. The power conferred under the above provision is to call for and examine the records relating to the impugned order for the purpose of satisfying ourselves as to the legality, regularity or propriety of such order. What does it mean? Can we make a re-appraisal of evidence for the purpose of recording an independent finding? No. We cannot do it. What we can do is to have a reappraisal of evidence for the purpose of testing whether the impugned order is not vitiated by anyone of the vices stated in Section 20 of the Act; that is to say, whether the order is vitiated for the reason of illegality, irregularity or impropriety."

While discussing the revisional jurisdiction of the High Court under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the Supreme Court in Kanta Udharam Jagasia (Miss) Vs. C.K.S. Rao, , observed in para 22 thus :

"It is well settled that though another view is possible on reappreciation of the evidence, the revisional Court may not interfere with the findings of the lower Courts on that ground."

At the same lime it cannot be disregarded that the revisional power conferred on the High Court is essentially a power of superintendence as observed by the Supreme Court in K.A. Anthappai Vs. C. Ahammed, . While exercising this power the Court can no doubt command the Rent Control Authorities to set right the orders or proceedings if it cannot satisfy itself as to the legality, regularity or propriety of such orders or proceedings.

In the aforesaid ambit of the powers we have to decide the question whether the impugned conclusion that the claim for reconstruction is not bona fide, requires correction. In this context it is apt to reproduce Section 11(4) (iv) of the Act :

"(iv) if the building is in suh a condition that it needs reconstruction and if the landlord requires bona fide to reconstruct the same and if he satisfies the Court that he has the plan and licence, if any required, and the ability to rebuild and if the proposal is not made as a pretext for eviction." (Provisos omitted)

The requirements to be satisfied by the Court for ordering eviction u/s 11(4)(iv) are the following :

1) That the building shall be in such a condition that it needs reconstruction;

2) That the landlord requires the building bona fide to reconstruct it;

3) That the landlord has the plan and licence, if any required and the ability to rebuild and

4) That the proposal is not made as a pretext for eviction.

There arc three provisions to this sub-section which protects the interest of the tenants facing eviction on the ground of reconstruction. Those protections arc the following :

1) In case the landlord fails to reconstruct the building completely within the time allowed by the Court, he is liable to fine of Rs. 500/-, if it is proved that he has willfully neglected to reconstruct the building completely;

2) The Court shall have power at any time to issue directions regarding the reconstruction of the building and on failure of compliance by the landlord to give effect to such order to put the landlord back in possession in appropriate cases or award to the evicted tenant damages equal to the excess rent he has to pay for another building that he is occupying in consequence of eviction and

3) The evicted tenant shall have the first option to have the reconstructed building allotted to him with the liability to pay its fair rent.

In this case it is an admitted fact that the building is situated in a Panchayat and therefore no plan and licence are required for the reconstruction of the building. Likewise it was found by two Courts that the landlord had ability to rebuild the building. It is also found that the building requires reconstruction on account of new developments in the area. In the aforesaid situation the Court cannot hold that the proposal for eviction is made as a pretext for eviction. Then the claim can only be bona fide. While testing the bona fide the Court is also empowered to take note of the second proviso to Section 11(4)(iv) of the Act. As aforesaid the said proviso inter alia provides that the Court has power in the case of default on the side of the landlord to give effect to the order to put the tenant back in possession or award to the evicted tenant damages. When the reconstruction is not made within the specified time it may be possible to say that the request of the landlord for eviction is not bona fide.

A Division Bench of this Court in Madhavan Vs. Leelamma, after analysing the earlier decisions of this Court observed :

"From the above quote, it is very clear that the correct provision allowing reinduction of the tenant has got very significant and important role to eonstrue the provisions contained in Section 11(4)(iv) of the Act."

In this context it would be apt to reproduce the following passage from the decision of the Supreme Court in Metalware and Co. etc. Vs. Bansilal Sarma and Co. etc., :

"We do not agree that old age and dilapidated condition of the building is a sine qua 11011 or a decisive factor for eviction u/s 14(1)(b) nor is it possible to accept the view that the said circumstances is totally irrelevant in pronouncing upon the bona fide requirement of the landlord. We are clearly of the view that the age and existing condition of the building -- whether it is a recent construction or very old and whether it is in a good and sound condition or has become decrepit or dilapidated -- are relevant factors forming part of ''all the circumstances'' that have to be considered while determining the bona fide requirement of the landlord u/s 14(1)(b) of the Act and in the totality of the circumstances these factors may assume lesser or greater significance depending upon whether in the scheme of the concerned enactment there is or there is not a provision for reinduction of the evicted tenant into the new construction. Such a view would be in accord with the main objective of the benign legislation enacted with the avowed intention of giving protection to the tenant."

Thus, it is manifest when the Court examines the bona fide requirement of the landlord for reconstruction of the building u/s 11(4)(iv) of the Kerala Act, the protection given to the tenant under the second proviso to the said section is a relevant consideration which cannot be dispensed with. This aspect of the matter has not been taken into account by the Appellate Authority while considering the question of bona fides of the requirement of the landlord for reconstruction of the building.

In view of the above reasons, the conclusion of the appellate authority that the claim put forth by the landlord is not a bona fide and it is only a pretext for eviction of the tenant from the petition schedule building is quite illegal, irregular and improper. Accordingly the impugned judgment in so far as it is objected above is set aside. We therefore direct the Rent Control Appellate Authority to apply the correct legal principles extensively discussed herein above. The Appellate Authority shall take a decision as directed above expeditiously, at any rate, within a period of three months from the date of receipt of a copy of the order. The petitioner as well as the respondents are allowed to produce fresh evidence if any, in so far as the point directed to be decided by the Appellate Authority. Both parties are also directed to appear before the Rent Control Appellate Authority on 1-2-1999. The C.R.P. is disposed of as above.