Padmanabhan Nair and Another vs Thiruvangat Devaki Brhamani Amma and Others

Pius C. Kuriakose, J.—A tenant who has suffered order of eviction passed concurrently on the ground u/s 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 by the Rent Control Court as well as the Appellate Authority is the revision Petitioner. The parties will be referred to as tenant and the landlords respectively. The case of the landlords was that the petition schedule room which is a bunk room is required so that one Rajan P.W.2, husband of the third Respondent could put up a new building after demolishing the existing building and start a printing press business therein. The contention which was prominently raised by the tenant was that he is a lessee of the land and that the building in question was put up by him only and therefore he has ownership over the building. The above contention was repelled by the Courts below on the basis of evidence which consisted inter alia of property tax assessment registers maintained by the local authority in relation to the building. The tenant did not specifically claim that the rent control petition was liable to fail in view of the first proviso to Section 11(3). He claimed protection of the 2nd proviso to Section 11(3). He failed in establishing that he satisfies either of the ingredients of that proviso. Thus his claim for protection under the second proviso was also turned down concurrently.

Pursuant to our order dated 12-1-2009 the Respondents were served with notice by special messenger. They entered appearance through advocate Sri. Harish R. Menon. Sri. T.K. Saidalikutty, learned Counsel for the Petitioners addressed us in detail on the various grounds raised in the revision memorandum. Sri. Saidalikutty submitted that the rent control petition was liable to be dismissed despite the finding that the claim is bona fide and the further finding that the tenants are not entitled to the protection of the second proviso to Section 11(3). According to him, the petition shall fail in view of the first proviso to Section 11(3). Learned Counsel conceded that the tenants were unable to show that the landlords are in possession of Anr. building of their own in which they could accomplish their projected need. He drew our attention to the judgment of this Court in Ikkorakutty v. Hariharan 1973 KLT 986 and argued that in the nature of the need which is projected by the landlords it is not necessary to show that the landlords are having possession of Anr. building of their own. According to him, it is sufficient if it is shown that the landlords have possession of other lands upon which they could construct a new building.

We shall straight away deal with the above argument of the learned Counsel. Ikkorakutty v. Hariharan was a case in which a learned Single Judge of this Court, Justice K. Bhaskaran (as he then was) dealt inter alia with the scope and ambit of the first proviso to Section 11(3). The learned Judge has stated at paragraph 10 of his judgment as follows:

Where virtually the petition amounts to one for recovery of the site on which the building is situated, inasmuch as the landlord''s case is that he wants to demolish the existing buildings and put up a new buildings for a specific use, the bona fide need of the landlord has to be tested from an angle different from that of the case in which recovery of possession sought for is that of the building itself. The section in terms contemplates only recovery of the building for his own occupation. The effect of the first proviso to Sub-section (3) of Section 11 has also to be construed when the petition in essence amounts to one for recovery of the site alone. Here when the prayer is virtually for recovery of the site, by the analogy of the provisions contained in first proviso to Sub-section (3) of Section 11 the Court should necessarily go into the question whether the landlord is possessed of other site where he could construct the building. If he is possessed of Anr. site, he cannot claim recovery of the building in order to secure the site thereof for the purpose of erecting Anr. building. The assumption that the landlord has any such unfettered choice in the matter will defeat the very object of the protective measure.

We are not inclined to rely on the judgment in Ikkorakutty v. Hariharan for more reasons than one. On going through the judgment in Ikkorakutty v. Hariharan, we notice that the learned Single Judge in that decision has taken the view that the Kerala Buildings (Lease and Rent Control) Act, 1965 has been enacted with the object of giving protection to tenants who according to the learned Judge belong to the weaker section not possessed of their own building either for their residence or for carrying on their occupation as the case may be. According to the learned Judge, the statute is based on the concept of security of tenancy for the tenants. The above view of the learned Judge that the rent control legislation is a welfare legislation for the tenant alone, can no longer be good law in view of the subsequent decisions of the Supreme Court taking the view that the rent control legislation is a welfare legislation for the landlord also. [See the decisions of the Supreme Court in Ganpat Ram Sharma and Others Vs. Gayatri Devi, , Even in Liaq Ahmed and Others Vs. Shri Habeeb-Ur-Rehman, where the Supreme Court has noticed that the primary intendment of the legislature in enacting the Rent Control Legislations was to protect the tenants against harassment and exploitation by the landlords; it has been laid down that the Rent Acts also make provision for safeguarding the interests of genuine landlords. It is held inter alia that the Rent Acts are intended to preserve the social environment and promote social justice by safeguarding the interests of the tenants mainly and at the same time protecting the legitimate interests of the landlords.

It is seen that in Ikkorakutty v. Hariharan 1973 KLT 986 the learned Judge has ruled that the burden to establish the availability of suitable buildings to the tenant in the context of the second proviso to Section 11(3) is that of the landlord and also that the relevant point of time for determining the availability of suitable buildings is the time of passage of the eviction order. A Division Bench of this Court in Kochappan Pillai v. Chellappan 1976 KLT 1 has expressly overruled the judgment in Ikkorakutty''s case on the above points, and held that the burden of proof in the context of the second proviso to Section 11(3) is that of the tenant and that the relevant point of time for determining the availability of alternate buildings to the tenant is the time of institution of the rent control petition.

We also find that in Ikkorakutty''s case the learned Judge has taken the view that in applications u/s 11(3) the Rent Control Court shall make a comparative evaluation of the hardships to the parties. We are unable to subscribe to that view and also to the view taken that when the need projected u/s 11(3) is to have own occupation after demolishing the tenanted building and putting up a new one, the first proviso to Section 11(3) will be attracted if it is seen that the landlord owns and possesses other vacant sites.

Even though the Division Bench in Kochappan Pillai''s case referred to the judgment in Ikkorakutty''s case in detail, the Bench does not appear to have considered the implications of the observations of the learned Single Judge regarding 1st proviso to Section 11(3) which we have quoted herein before. The Bench has only referred to Section 11(4)(iv) and observed that provision of the first proviso to Section 11(3) is confined to Section 11(3), and its extension to section 11(4)(iv) is not permitted under the Act. We shall therefore proceed to consider whether in cases where the need projected u/s 11(3) is to pull down the existing building and put up a new building for occupation of the landlord or his dependent family member, the need should be considered as a need for the site of the building alone and hence the availability of alternate sites suitable for putting up building will entail disqualification in terms of the first proviso to Section 11(3).

The first proviso to Section 11(3) is extracted below:

Provided that the Rent Control Court shall not give any such direction if the landlord has Anr. building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular case it will be just and proper to do so.

A plain reading of the Sub-section and the above quoted proviso will show that it is possession of own building by the landlord in the same city, town or village which disables the Rent Control Court from ordering eviction in the absence of special reasons. The term ''building'' has been defined in the statute as any building or but or part of a building or hut, let or to be let separately for residential or non-residential purposes. The argument of Sri. T.K. Saidalikutty was that the building as per the definition will include gardens, grounds and the site of the building also. But, a careful reading of the definition clause will show that it is only gardens and grounds which are let, or to be let along with the building or hut which are envisaged by the statute as covered by the definition of the term ''building''. Even if it is accepted that building site is also apart of the building it is not possible to accept the argument that the site sans building will qualify as building. The Division Bench in Kochappan Pillai''s case (supra) has observed inter alia at paragraph 12 of its judgment that recovery of possession of mere site will not be covered by Act 2 of 1965 since the Act deals exclusively with buildings. As already stated, a plain reading of the proviso will show that the proviso speaks of own buildings possessed by landlords and not building sites. We have, therefore, no doubt in our mind that in order that the first proviso to Section 11(3) applies the landlord must be possessed of Anr. building of his own. The intention of the legislature in enacting the first proviso to Section 11(3) is clearly that when the landlord''s avowed need u/s 11(3) can be accomplished through a building already possessed by him, the tenant should not be disturbed on the basis of that need.

Our above view does not mean that in a case where the landlord''s need u/s 11(3) is to put up a new building on the site of the tenanted building for own occupation, the availability of a suitable site with the landlord in the vicinity of the tenanted building is totally irrelevant. The same can have relevance while deciding the crucial question whether the need and the claim are bona fide.

We are unable to approve the learned Single Judge''s view that comparative hardship of the parties is to be taken into account while deciding the bona fides of a need and claim u/s 11(3). The concept of comparative hardship or rather of the comparative evaluation of the advantages to the landlord and hardship to the tenant resulting from an order of eviction is incorporated in the first proviso to Section 11(10). That provision is applicable only to applications for eviction on the ground of additional accommodation under Sub-section (8) of Section 11.

We are therefore of the view that the judgment in Ikkorakutty v. Hariharan 1973 KLT 983 to the extent it interprets the scope of the first proviso to Section 11(3) and also the view expressed regarding applicability of concept of comparative hardship to applications u/s 11(3) has not been correctly decided.

There are other reasons to reject Mr. Saidalikutty''s argument raised in the context of alleged availability of vacant site with the landlords for construction of new building. On going through the pleadings it is seen that the contention that the rent control petition was liable to fail in view of the first proviso to Section 11(3) was never taken by the revision Petitioners tenants. The law is that it is for the landlord to assort first that he has no other building in his own possession which disables him from getting an order of eviction in view of the first proviso to Section 11(3). When such an assertion is made by the landlord it is for the tenant to contend that the assertion of the landlord is wrong. The landlords'' specific pleading is to the effect that they have no other building of their own in their possession. P.W. 1, the landlady testified in her chief examination that none of the landlords have any building or land by which the projected need could be satisfied. We notice that the above assertion of the landlady was not challenged in cross-examination. It is in the cross-examination of P.W. 2 the de facto claimant that it is brought out that the family of landlords have other extents of land. But here again, despite lengthy cross-examination, P.W. 2 is not asked as to why those lands are not being utilised for accomplishing the bona fide need of constructing new building. To allow the revision Petitioners to raise a contention based on the first proviso to Section 11(3) at this belated stage will result in serious prejudice to the landlords. As already indicated, the contention which was prominently and seriously raised and pursued by the revision Petitioners was the contention of denial of the landlords'' title to the building. In other words, it was the tumultuous contention that the building itself belongs to the tenant which was raised and pursued by him. The tenants failed miserably in substantiating their contention. Acording to us, it will be most inequitable, having regard to Rule 11(8) of the Kerala Buildings (Lease and Rent Control) Rules which provides that the Rent Control Court and other authorities under the statute shall be governed by the principles of justice, equity and good conscience, to allow the tenant to raise such a contention at this stage. The contention at any rate is whithout any merit.

Sri. Saidalikutty would seek one year''s time to vacate the premises. Mr. Harish R. Menon would oppose the request. We are not inclined to grant so much of time. At the same time we are of the view that time can be granted till 31-8-2009 subject to the following conditions.

The revision Petitioners shall file affidavit before the Munsiffs Court, Parappanangadi, the execution Court stating that they will give peaceful surrender of the petition schedule building to the Respondents on or before 31-8-2009 and that they will discharge arrears of rent if any accrued so far in respect of the building within one month of the date of filing of the affidavit and will continue to pay the rent which falls due subsequently till the date of actual surrender without fail.

If the execution Court notices the filing of such affidavit within ten days from today that Court will adjourn the execution petition to 7-9-2009.