Remadevi vs R. Janaki Amma and Others

K. Sreedharan, J.—This Original Petition has come up before us on a reference made by a learned Single Judge. He doubted the correctness of the decision in Kesava Pillai v. Poulose 1989 (2) KLT 416. Therein, it was taken that even if licence for putting up a building in a particular area is not required from the local authority, the landlord who seeks recovery of the building u/s 11(4)(iv) of the Kerala Buildings (Lease and Rent Control) Act, hereinafter referred to as "the Act" should produce a plan of the building proposed to be constructed. In the absence of a plan, it was held that Rent Control Court cannot direct tenant to put the landlord in possession of the building for the purpose of re-construction.

The short facts necessary for the disposal of this Original Petition are as follows: Petitioner is the owner of a building situated within Kozhencherry Panchayat. She leased it out to Respondents 1 and 2 on a monthly rent of Rs. 25 as per a lease deed dated 1st October 1974. The building is in a dilapidated condition. Consequently, she filed O.P. (BRC) 15/1976 before the Rent Control Court, Pathanamthitta for recovery of the same on the ground, among Ors., of re-construction u/s 11(4)(iv) of the Act. Respondents 1 and 2 disputed the claim of the Petitioner, landlord, on the ground that she had no capacity to re-construct the building, that she had not produced in Court either the plan or estimate for the proposed new building and that she was not entitled to recover the same. Rent Control Court, by order dated 30th October 1976, held that the building requires re-construction; that the Petitioner''s requirement for re-constructions is bona fide; that Petitioner has the ability to build; and that the proposal for reconstruction was not a pretext for eviction. It also went into the question as to whether a plan and licence for re-construction of the building is required. Since the area fell within a panchayat and building rules have not been extended to that area, Rent Control Court came to the conclusion that the plan and licence are not required in the instant case. In this view, Respondents 1 and 2 were directed to put the landlord in possession of the building and the Petitioner to re-construct the building within six months. Respondents 1 and 2 took up the matter in appeal before the appellate authority, the Subordinate Judge, Pathanamthitta. All the contentions raised by Respondents 1 and 2 were rejected and the appeal was dismissed, confirming the order passed by the Rent Control Court. Thereupon Respondents 1 and 2 filed revision petition before the District Court, Kollam u/s 20 of the Act. Learned District Judge concurred with the finding arrived at by the Rent Control Court and the Appellate Authority on the questions of bona fide requirement of re-construction; Petitioner''s ability to build; and that the proposal for re-construction was not a pretext for eviction. Point that was considered by the learned District Judge was whether a landlord who seeks eviction on the ground of re-construction should have satisfied the Rent Control Court that he has a plan for re-construction. Since such a plan was not produced by the landlord, the learned District Judge went into the question as to whether the order for recovery of the building passed by the authorities below was sustainable. Learned District Judge held that point against the Petitioner and set aside the findings arrived at by the authorities below and rejected the prayer of the landlord for recovery u/s 11(4)(iv) of the Act. Hence this Original Petition.

For a proper understanding of the provision contained in Section 11(4)(iv) of the Act, we read the same:

11(4) A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building,-

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(iv) If the building is in such a condition that it needs re-construction 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 to the section are not quoted, because they are not relevant for the issue in this case).

From the above provision, a landlord can get an order directing the tenant to put him in possession of the building if he satisfies the Rent Control Court-(a) the building is in such a condition that it needs re-construction; (b) the land lord requites bona fide to re-construct the same; (c) he satisfies the Court that he has the plan and licence, if any required; (d) the ability to re-build; and (e) the proposal is not made as a pretext for eviction. In the instant case, the concurrent findings arrived at by the Rent Control Court and the Appellate Authority are-(a) the building is in such a condition that it needs re-construction; (b) the landlord has the bona fides to re-construct the same; (c) the landlord has ability to re-build; and (d) that the proposal is not made as a pretext for eviction. These findings have not been interfered with by the learned District Judge.

It is the admitted case of parties that the building is situated in an area to which the Kerala Building Rules were not extended. So, for constructing a building in that area, no licence from any authority was required. Consequently, the Petitioner did not produce any plan and licence before the Rent Control Court for getting Respondents 1 and 2 evicted from the building. Learned District Judge, while exercising the revisional power, did not observe that for re-constructing the petition schedule building any licence from any authority was required. But, he took the view that even under such circumstance the landlord should have a plan of the proposed building to satisfy the Court. Whether such an interpretation is warranted from the provisions of the section?

As stated earlier, Section 11(4)(iv) of the Act inter alia states that the landlord should satisfy the Court that he has the plan and licence, if any required. It means that he should satisfy the Court regarding the existence of the plan and licence, if it is required. The requirement cannot be of the Rent Control Court, for the Rent Control Court cannot be presumed to have the expertise to see whether a building shown in the plan can be constructed in the site or not. The Rent Control Court, as we see from the scheme of the Act, cannot compel any landlord to put up a building in conformity with a plan approved by it. Even if a plan is produced before the Rent Control Court and the landlord gets recovery of the existing building for reconstruction in accordance with the plan, during the course of construction if any variation is made from the details given in the plan, the Rent Control Court is helpless in taking any action on that count against the landlord. In such a situation, we fail to understand the purpose behind the view that the Rent Control Court must be satisfied of the details of the plan.

The section requires the landlord to satisfy the Rent Control Court that he has the plan and licence as required by law. This requirement can only be that under the Kerala Building Rules or any other statute governing the matter. The licensing authority, before granting the licence, must be convinced of the statutory requirements that will have to be complied with by the landlord, in relation to the new building sought to be put up. Only on getting that satisfaction, the authority can grant licence. So, the licence for putting up the building can only be of that, the details of which, as are given in the plan. Without a plan of the proposed building, no licensing authority will be in a position to grant licence. The plan and licence that are required to be produced by the landlord who seeks recovery of the building u/s 11(4)(iv) of the Act can be the plan that supports the licence. If the licence has been issued by the licensing authority in respect of a particular plan, that authority can control the construction to be in conformity with the plan attached to the licence. Dehors a plan, there cannot be a licence. So also a licence to build cannot be granted without a plan. So, the plan and licence mentioned in the clause go together. When the building is sought to be put up in a place to which the provisions of the Kerala Building Rules are not extended, no licence is required and in such a situation, no plan is also contemplated.

As per the section quoted above, the Rent Control Court must find on the basis of the pleadings and the evidence that the building is in such a condition that it needs reconstruction and that the landlord bona fide requires to reconstruct the same. Other satisfactions that are to be fulfilled by the landlord are that he has the ability to re-build and that the proposal is not made as a pretext for eviction. For getting satisfaction on the bona fide requirement, Court must be shown that he has the plan and licence, if required for re-construction. Plan and licence need be shown for such satisfaction only if they are legally required for re-construction. The words "if any required" should, according to us, qualify both plan and licence. In a case where licence is not required for reconstruction, neither plan nor licence is to be produced before Court for establishing the bona fides of the landlord before the Rent Control Court. The production of a plan where no licence is required can only be an empty formality, because neither the Rent Control Court can insist on construction in terms of the plan; nor can it take any action if construction is carried on in variance of the details given in the plan.

In Kesava Pillai v. Paulose 1989 (2) KLT 416 the tenant did not raise any contention based on the absence of plan either before the Rent Control Court, the Appellate Authority or the revisional Court. In the said decision, the learned Judge did not allow the tenant to take up the contention that the landlord does not have the plan for reconstruction and so the order of eviction should be interfered with. It was under such circumstance the learned Judge took the view:

No doubt that the landlord must have a plan and the Rent Control Court must be satisfied of the fact.

This observation was in relation to reconstruction of a building which did not require any licence from any authority. So, according to us, the said observation was not necessary on the facts of that case and that observation cannot be taken as one laying down correct law. In Nizzar Rawther v. Varghese Mathew 1994 (2) KLT 223 Anr. learned Judge had to consider the requirement of plan and licence in relation to an area to which Kerala Building Rules was not extended prior to the order of eviction passed by the Rent Control Court. On account of the extension of the Kerala Building Rules to that area subsequent to the order of eviction, the question arose as to whether the order of eviction passed u/s 11(4)(iv) without the plan and licence can be enforced. Since eviction was ordered without a licence being obtained, it was contended that the order became inexecutable and it must be deemed to have been statutorily discharged within the meaning of Section 47 of the CPC read with Section 14 of the Act. The learned Judge observed:

Even without a plan and licence, when they are not required, rent control authorities could have had the satisfaction and ordered eviction. That is because basis of the order is not the plan and licence, but satisfaction of the authority on relevant materials.

We are in respectful agreement with the said observation.

In the instant case, as stated earlier, all the requirements u/s 11(4)(iv) entitling the landlord to have the recovery of the building have been found by the Courts below. Learned District Judge, while exercising jurisdiction u/s 20 of the Act, took the view that in the absence of a plan, the Rent Control Court was not justified in ordering recovery. That view, as is reflected in 1989 (2) KLT 416, is not the correct position. The principles stated in the said decision is dissented from.

Landlord sought recovery of the building for the purpose of reconstruction by filing O.P. (BRC) No. 15/1976. Nearly two decades have passed by. The cost of construction has gone up by many fold. Still, she has not been given the chance to reconstruct the building. As per the law, the tenant, who could successfully deny the landlord the chance to reconstruct the building for decades, cannot be saddled with liability to shoulder the hike in costs. What we can do is to direct the tenant to put the landlord in possession of the building without any delay whatsoever. The Rent Control Court should take urgent steps to put the landlord in possession of the building as expeditiously as possible for the purpose of reconstruction.

Original Petition is allowed in the above terms. The order passed by the revisional authority, i.e. Exhibit P-3, is quashed. The order passed by the Rent Control Court is restored. However, we make no order as to costs.