Kerala High Court
Aboobacker vs Sahithya P.S. Sangham Ltd. on 5 November, 2003
Equivalent citations: 2004(2)KLT947
Author: K.S. Radhakrishnan
Bench: K.S. Radhakrishnan, Pius C. Kuriakose
ORDER K.S. Radhakrishnan, J.
1. The question that has come up for consideration in this case is whether the Rent Control Court after having satisfied that the need of the landlord under Sub-section (3) of Section 11 of Act 2 of 1965 is bona fide could still reject the application under Section 11(10) of the Act on the ground that the claim is not bona fide.
2. Rent Control Petition was filed seeking eviction under Section 11(2)(b) and 11(3) of the Act for arrears of rent as well as for bona fide need for starting a super market in the petition schedule building. Petition schedule building situates in the heart of the town of Thrissur facing Post Office Road. Petitioners are partners of a partnership firm by name "Kannamkilakath Rest Palace". They are conducting a lodge having 37 rooms at Thrissur and are also engaged in the business of building materials. The first petitioner alongwith the 7th petitioner who is his son bona fide needs the tenanted premises for starting a super market. They have got the capacity and the ability to start the super market. Petition was resisted by the tenant urging that the need alleged is not bona fide and that the petitioners have no capacity to start super market. Rent Control Court was not satisfied with the need urged under Section 11(3) and dismissed the petition holding that the plea of the petitioners is only a mere desire. Petitioners took up the matter in appeal and the Appellate Authority found that the need projected by the landlord is bona fide and also found that the petitioners have got the financial capacity to start super market in the tenanted premises, but rejected the petition. The Appellate Authority while appreciating the bona fide need opined as follows:
"Even when I try to approach the need and the claim of the landlords with a doubtful and suspecting state of mind, I am unable to Find any specific and particular reason which can persuade me to hold that the landlords need and claim are not bona fide. Inherently and on broad probabilities, I am unable to find anything which can persuade me to hold against the landlords. I am in these circumstances of the opinion that the court below was eminently correct in having come to the conclusion that the landlords have succeeded in establishing their alleged bona fide need."
Having come to the conclusion that the landlords have succeeded in establishing that the need and the claim are bona fide, the Appellate Authority proceeded to hold as follows:
"In a claim for eviction under Section 11(3), it is not enough if the court satisfies itself about the bona fides of the need. It must definitely consider the bona fides of the claim under Section 11(10). It would be unrealistic to hold that every claim on the ground of proved bona fide need would be a bona fide claim also. One can certainly visualise cases where though the need is bona fide the claim may not be. In the instant case, the need of the landlord is not definitely a "dire need". Definitely, the evidence indicates as stated earlier, that they can do without starting the proposed business also. But that fact alone cannot be held to be sufficient to persuade this Court to hold that the claim is not bona fide. I am in these circumstances unable to accept the contention that the claim under Section 11(3) must be disallowed even if the Court is satisfied about the bona fides of the need".
In the earlier and later part of the judgment the Appellate Authority itself has stated that the claim and the need are bona fide and therefore even going by the Appellate Authority's own reasoning Section 11(10) would not apply. We fails to see how the Appellate Authority could invoke Section 11(10) and reject the petition on the ground the bona fides of the landlord is not definitely a "dire need". Appellate Authority felt that the landlord can eke out livelihood even without starting the proposed business. The reasoning of the Appellate Authority is unsound and wayward. In several cases, we have found that Rent Control Courts and some of the Appellate Authorities are not properly understanding and appreciating the scope of the said provision, just like in this case and put the parties to peril. Before examining the scope of the said provision we may extract the same for easy reference.
"11(10). The Rent Control Court Shall, if it is satisfied that the claim of the landlord under Sub-sections (3), (4), (7) or Sub-section (8) is bona fide, make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the Rent Control Court, and if the Court is not so satisfied, it shall make an order rejecting the application:
Provided that, in the case of an application made under Sub-section (8), the Rent Control Court shall reject the application if it is satisfied that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord:
Provided further that the Rent Control Court may give the tenant a reasonable time for putting the landlord in possession of the building and may extend such time so as not to exceed three months in the aggregate."
3. From a reading of the above provision the following aspects emerge, viz.,
(i) Section 11(10) takes in only Sub-sections (3), (4), (7) and (8).
(ii) Sub-sections (3), (4), (7) and (8) of Section 11 only enables the landlord to apply for eviction.
(iii) The provision which enable the Rent Control Court to pass orders of eviction is Section 11(10) after having satisfied that the claim of the landlord is bona fide under Sub-sections (3), (4), (7) and (8) of Section 11.
(iv) The Rent Control Court has to fix a specific date enabling the tenant to put the landlord in possession of the building.
(v) The Rent Control Court may also give the tenant a reasonable time for putting the landlord in possession of the building and may extent such time so as not to exceed three months in the aggregate.
(vi) If the Rent Control Court is not so satisfied shall make an order rejecting the application.
(vii) Rent Control Court can reject the application under Sub-section (8) of Section 11 if it is satisfied that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord.
4. Sub-section 11(3) states that the landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building if he bona fide needs the business for his own occupation or for the occupation by any member of his family dependent on him. Section 11(10) stipulates that the Rent Control Court shall, if it is satisfied that the claim of the landlord under Sub-sections (3), (4), (7) or Sub-section (8) is bona fide, make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the Rent Control Court. When we compare Sub-sections (3), (4), (7) and (8) of Section 11 with Sub-section (10) of Section 11 what emerges is that Sub-sections (3), (4), (7) and (8) enable the landlord to apply to the Rent Control Court for an order and consequent order is to be passed under Section 11(10). In other words Sub-sections (3), (4), (7) and (8) enable a landlord to apply and Section 11(10) obliges the Rent Controller to make an order.
5. The Legislature has omitted Sub-sections (2), (5) and (6) from Section 11, the reason being that Sub-sections (2), (5) and (6) are self-contained provisions. Application and the consequent order is to be passed under those provisions itself. Section 11(2)(a) enables a landlord to apply to the Rent Control Court for claiming arrears of rent. Section 11(2)(b) authorities the Rent Control Court to make an order directing the tenant to put the landlord in possession of the building if it is satisfied that the tenant has not paid or tendered the rent due by him. Further, Section 11(2)(c) also enable the Rent Control Court to pass consequential orders. Section 11(5) and (6) also enables the landlord to apply to Rent Control Court if he wants to renovate the building for an order directing the tenant to permit the landlord to carry out renovation within a specified time and that the tenant shall be bound by the orders passed by the court and on renovation liable to pay enhanced rent under Sub-section (6).
6. The reasoning of the Appellate Authority is that under Section 11(3) read with Section 11(10) it is not enough that the landlord establishes the bona fide need of the building for his own occupation or for the occupation by any member of his family dependent on him but has to further prove that the claim is bona fide under Section 11(10). Attempts have been made to draw a distinction between "bona fide need" and "bona fide claim", a distinction which has never been envisaged by the Legislature. Pertinently, Section 11(10) speaks of the claim under Sub-section (3) (and other sub-sections also) which is only that the petitioner has a bona fide need. The word "claim" used in Section 11(10) is thus nothing but the grounds mentioned under Sub-sections (3), (4), (7), or Sub-section (8). Word "claim" has been defined in Chambers Dictionary, inter alia, to mean "right or ground for demanding". The word "claim" under Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 was explained by the Apex Court in Hameedia Harware Stores v. Mohanlal Sowear, (1988) 2 SCC 513 "as a demand for something due" or to seek or ask on the ground of right. The word "claim" means something on which right is sought to be enforced for which there is a denial. Certain Appellate Authorities used to take the view that Section 11(10) speaks of "paramount bona fide". Such a dominant concept is foreign to Section 11(10) and we reiterate the expression "claim of the landlord" mentioned in Section 11(10) is only the bona fide need mentioned in Sub-sections (3), (4), (7) and (8) of Section 11.
7. We may in this connection refer to certain decisions of this Court which dealt with the scope of Section 11(10). A Bench of this Court in Azhikode Service Co-op. Bank Ltd. v. Narayanan, 1994 (2) KLT 29 had occasion to consider the scope of the above mentioned provision and held:
"Ordinarily when the bona fide need is established, it necessarily follows the claim for eviction also is bona fide unless it is a subterfuge. In the case of eviction under Sub-section (7) the landlord shall establish that his claim is bona fide as required under Sub-section (10)."
Another Division Bench in Abdul Rahiman v. Lakshmi, 1994 (2) KLT 123 has also examined the scope of Section 11(10) and held:
"The intention of the Legislature in referring to the bona fides of the landlord under Sub-section (10) is only to make it clear that the application should not be for collateral purposes like enhancement of rent etc. We have therefore no hesitation to hold that the landlord who seeks eviction under Section 11(4)(iii) need not prove that he has a bona fide need for own occupation in addition to the conditions contained under Sub-clause (iii)."
The Rent Control Court, if it is satisfied that the claim of the landlord under Sub-sections (3), (4), (7) or Sub-section 8 is bona fide, shall make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the Rent Control Court. The expression "shall" used in Section 11(1) in our view, is mandatory. In State of U.P. v. Manbodhan Lal Srivastava, AIR 1957 SC 912, State of U.P. v. Baburam Upadhya, AIR 1961 SC 751, Sainik Motors, Jodhpur v. State of Rajasthan, AIR 1961 SC 1480 and various other decisions the Apex Court held that the use of word "shall" raises a presumption that the particular provision is imperative; but this prima facie inference may be rebutted by other considerations such as object and scope of the enactment and the consequences flowing from such construction. Rent Control Court shall make an order only if it is satisfied that the claim of the landlord is bona fide. When the Rent Control Court is satisfied that the claim is bona fide it is imperative that the court shall make an order directing the tenant to put the landlord in possession of the building. Legislature contemplates fixation of a specific date by the Rent Control Court to enable the tenant to put the landlord in possession of the building. Further, the second proviso to Section 11(10) enables the Rent Control Court to give the tenant a reasonable time for putting the landlord in possession of the building and may extend such time so as not to exceed three months in the aggregate. Legislature has fixed a time limit of three months in the aggregate in the second proviso to Section 11(10). In other words, Legislature wanted the Rent Control Court to fix a specific date for surrender once it is satisfied that the claim is bona fide. Rent Control Court is therefore duty bound while passing orders under Section 11(10) to fix a specified date to enable the tenant to put the landlord in possession of the building. If the said order is not complied with the landlord could approach the Munsiff Court for executing the order passed under Section 11(10). In this connection it is also necessary to examine Section 14 of the Act which reads as follows :
"14. Execution of Orders:--Every order made under Section 11 or Section 12 or Section 13 or Section 19 or Section 33 and every order passed on appeal under Section 18 or revision under Section20 shall, after the expiry of the time allowed therein be executed by the Munsiff or if there are more than one Munsiff, by the Principal Munsiff having original jurisdiction over the area in which the building is situated as if it were a decree passed by him:
Provided that an order passed in execution under this section shall not be subject to an appeal but shall be subject to revision by the Court to which appeals ordinarily lie against the decisions of the said Munsiff."
Section 14 deals with execution of various orders including the order passed under Section 11. The Section also used the expression "after the expiry of the time allowed therein". The expiry of the time allowed is the time fixed by the Rent Control Court under Section 11(10). In other words, if the tenant fails to vacate the premises on the date specified or on the subsequent date as specified under Section 11(10) read with second proviso the landlord can approach the Munsiff's Court under Section 14 to execute the order after the expiry of the time stipulated in Section 11(10).
8. In view of the above mentioned discussion the following principles emerge.
(1) An order of eviction is to be passed by the Rent Control Court under Section 11(10) when a landlord establishes the bona fide need under Sub-sections (3), (4), (7) or Sub-section (8) of Section 11. The Rent Control Court is not expected to further examine as to whether the claim is bona fide or not.
(2) Rent Control Court while examining the question whether the need urged by the landlord is bona fide or not under Sub-sections (3), (4), (7) or Sub-section (8) is virtually examining the claim itself, that is the ground for eviction.
(3) Rent Control Court is legally obliged if it is satisfied that the claim of the landlord under Sub-sections (3), (4), (7) or Sub-section (8) is bona fide to make an order specifying a date for enabling the tenant to put the landlord in possession of the building.
(4) Rent Control Court may also give the tenant a reasonable time for putting the landlord in possession of the building and may extent such time so as not to exceed three months in the aggregate.
(5) Rent Control Court is obliged to reject an application made under Sub-section (8) if it is satisfied that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord.
(6) The Munsiff of the Principal Munsiff as the case may be, is expected to execute the order passed under Section 11(10) of the Act under Section 14 only after the expiry of the time fixed under Section 11(10). In other words, it is mandatory on the part of the Rent Control Court to fix a specified date for surrender by which time the tenant should put the landlord in possession.
9. Under such circumstances we have no hesitation to hold that the Appellate Authority has committed a grave error in rejecting the petition after having found that the landlord has established that the need urged by him under Section 11(3) is bond fide. CRP is accordingly allowed and the judgment of the Appellate Authority is set aside. The tenant is given time upto 28-2-2004 to vacate the promises provided he files an undertaking within one month before the Rent Control that he would vacate the premises within the aforesaid time and that he would pay arrears of rent if any, and future rent.