Kerala High Court
Narayanankutty vs Abiida Abdul Kareem on 27 March, 2002
Equivalent citations: 2002 A I H C 3554, (2002) 1 KER LJ 612, (2002) 2 KER LT 507, (2002) 2 RENCR 409
Author: K.S. Radhakrishnan
Bench: K.S. Radhakrishnan
JUDGMENT K.S. Radhakrishnan, J.
1. The question that has come up for consideration is whether eviction sought for by the landlord of the tenanted premises so as to use it as a pathway for the proposed multi-storeyed building would come within the scope of Section 11 (3) or 11 (4)(iv) of Act 2 of 1965. Landlords maintained the stand that their requirement would come within the scope of Section 11 (3) of the Act. Tenant would contend that it would fall under Section 11 (4)(iv) of the Act. Consequently he could get the benefit of re-entry and stake claim for an equal area after reconstruction.
2. Rent Control Court as well as the Appellate Authority took the view that the claim of the landlords would fall under Section 11(3) and not under Section 11(4)(iv). Appellate Authority alternatively considered the plea as to whether in the facts and circumstances of the case the claim would fall under Section 11(4)(iv) and gave option to the tenant to accept the premises offered by the landlords.
3. Landlord-tenant relationship is not in dispute. Landlords are owners of plot of land in a commercially important area on the side of Jews Street in the Cochin City. Petition-scheduled building is situated on the southern side of the plot abutting the road. Landlords wanted to construct a multi-storeyed commercial building in the plot. Proposal was to construct a line of shop rooms facing east. Between the compound wall on the east and the proposed building, landlords were able to leave a three meter wide pathway as access to the newly constructed building. Further it was pointed out on the eastern side of the plot belonging to the landlords there was another building referred to as Balaji building. The owner of the said plot had constructed buildings in his property leaving a three metre wide pathway on the west of his building. Landlords thought that if they demolish the compound wall on the eastern side of their property, the pathway left by them on the east to their building and the pathway left by the owners of Balaji building on the west of their building could be used together for the common advantage of both the petitioner and landlords.
4. Petition schedule building is situated abutting the Jews street. Landlords have constructed a building and the same is getting complete. According to the landlords building on the east has space on its western side and the same is being used as access to the new building. If the tenanted premises is demolished it can be used as pathway. Above is the need projected by the landlord. Both the courts below have concurrently found the need is bona fide. We find no reason to take a different view sitting in revisional jurisdiction.
5. The only question to be considered now is whether the above need projected by the landlord would fall under Section 11(3) or 11(4) (iv) of the Act. Counsel appearing for the revision petitioner contended that unless the landlord needs the building bona fide for his own occupation or for the occupation of any member of the family dependent on him, Section 11 (3) would not apply. Counsel submitted that landlord proposes to demolish the tenanted premises not to construct a new building in its place but to use the space occupied by the tenanted premises as an access to the new building and hence the same would fall only under of Section 11 (4)(iv) of the Act in the event of which tenant can claim statutory right of re-entry.
6. Counsel appearing for the landlord on the other hand contended that the landlord has no intention to construct any building in the tenanted premises after demolition. The space occupied by the tenanted building has to be kept as a pathway. Counsel appearing for the landlord submitted that only if there is any reconstruction in the tenanted premises tenant can claim re-entry under Section 11(4)(v) of the Act.
7. Counsel on either side referred to certain decisions of this Court though not directly answering the question posed. Before we examine the rival contentions we shall examine the scope of the definition of the word 'building' in the Act. The word 'building' is defined in Section 2(1) of the Act. Relevant portion of the same is extracted below:
2. Definitions: In this Act, unless the context otherwise requires -
(1) "building" means any building or hut or part of a building or hut, let or to be let separately for residential or non-residential purposes and includes.-
(a) the garden, grounds, wells, tanks and structures, if any, appurtenant to such building, hut or part of such building or hut, and let or to be let among with such building or hut;
(b) xx xx xx (c) xx xx XX
The expression "unless the context otherwise requires" as well as the term "means and includes" in the definition clause require elucidation. The use of the word "means" shows that the definition is hard and fast definition and that no other meaning can be assigned to the expression than it in the definition. Section 2(1) however uses the expression "means and includes". Though we have mentioned that the word means as such is restrictive since the Legislature used the expression "includes" also, it enlarges the scope of the definition clause. The word "includes" is generally used in the interpretation clause for enlarging the meaning in the body of the statute. Legislature uses the word "means" wherein it is intended that while the term defined should retain its ordinary meaning, its scope should be widened by specific enumeration of certain matters which is the ordinary meaning may or may not comprise so as to include definition enumerative. Let us now read Section 11(3) bearing in mind the meaning to be attributable to the word "building" as defined in Section 2(1). Section 11(3) reads as follows:
"A 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 building for his own occupation or for the occupation by any member of his family dependent on him." .
A reading of Section 11(3) with the definition clause in Section 2(1) would show that tenanted premises as well as the garden, grounds, wells, tanks and structures, if any, appurtenant to such building, hut, or part of such building or hut etc. would come within the scope of Section 11(3).
8. Section 11(3) also uses the expression "for his own occupation". Contention was raised by the counsel for the tenant that the expression "for his own occupation" would mean that the landlord himself should occupy the tenanted premises or building newly constructed in the tenanted premises after demolition. We are of the view, the expression "occupation" has to be given a wider meaning. It is true that after the tenanted premises is vacated, landlord if bona fide needs the building he can occupy it or a person depending upon him as the case may be. The question is whether he can occupy the same tenanted premises once the premises is required for a passage to the newly constructed building. It is physically impossible to occupy the tenanted premises on its demolition since the area is to be used as a passage. Passage to newly constructed building could be used not only by the landlord but the public at large who come to the newly constructed building. One cannot expect the landlord or dependent alone is in occupation of the area left as a passage after demolition of the tenanted premises. The word "occupation" has got different shades of meaning. Chambers 20th Century Dictionary gives the meaning of "occupation" as the act of occupying, state of being employed or occupied, that which occupies or takes up one's attention. Landlord can also occupy passage leading to the building which is appurtenant. The purpose projected in this case by the landlord is bona fide. What is required is demolition of the tenanted premises so as to use it as a passage to the newly constructed building. That means, on demolition the premises is not in exclusive occupation of the landlord but could be used by others as well.
9. We are therefore of the view that the need projected by the landlord comes under Section 11(3) and not under Section 11(4)(iv). Section 11(4)(iv) would apply only in cases where landlord bona fide requires eviction of the tenanted premises so as to construct a building in the premises where the tenanted premises situate. We may extract Section 11 (4)(iv) for easy reference.
(iv) if the building is in such 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."
In order to satisfy the claim under Section 11(4)(iv) landlord has to establish that the building is in such a condition that it needs reconstruction. Further landlord has to show that he requires bona fide to reconstruct the same. In the instant case landlord wanted to demolish the tenanted premises and he need not show that the tenanted building requires reconstruction. What he wanted is total demolition so as to use the space as a passage. Therefore in such a situation, the requirement would not fall under Section 11(4)(iv) of the Act.
10. We may in this connection refer to some of the decisions cited at the Bar. Earliest of the decisions referred to was in Sarada and Ors. v. M.K. Kumaran (1968 KLJ 839). This Court considered the need contemplated by Section 11(3) of the Act. Learned single Judge of this Court held as follows:
"The fact that the pathway is intended for the customer of the landlord to go to the lodging house and a restaurant belonging to him does not mean that the landlord will not be in occupation of the same."
Further it was held:
"The landlord for the purpose of pathway is only going to demolish the superstructure or the edifice enclosing the space. The pathway will be enclosed on the sides by the walls and the pathway which was part of the building will become part of the lodging houses to be constructed by him. Thus, it will be a building itself as defined under Section 2(1) of the Act. The contravention of the existing building into a pathway for the use of the landlord is a need covered by Section 11(3) of the Act."
An identical issue came up for consideration before the Apex Court in R.P. Mehta v. LA. Sheth (AIR 1964 SC 1676). The Apex Court was dealing with the scope of Sections 13(1)(g) and 13(1)(hh) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. Landlord in that case wanted to demolish the building for his residential purpose. Apex Court was examining the scope of the word "premises" as well as the word "occupies". The Court held:
"Occupation of the premises in Clause (g) does not necessarily refer to occupation as residence. The owner can occupy a place by making use of it in any manner. In a case like the present, if the landlords on getting possession start their work of demolition within the prescribed period, they would have occupied the premises in order to erect a building fit for their occupation."
Another learned Judge of this Court has also considered a similar question in Krishna Menon v. District Judge (1988 (1) KLT 131). It was held that the word "occupation" does not necessarily refer to occupation as residence. An owner can occupy a place by making use of it any manner. The scope of Sections 11(3) and 1 l(4)(iv) came up for consideration before a Division Bench of this Court in George Varghese v. Ammini Cherian (1995 (2) KLT 763). Though the same question as such was not posed before the Bench, the Court held that when a landlord applies for eviction on two grounds - one under Section 11(3) and the other under Section 11(4)(iv) of the Act, Rent Control Court can stop with the finding that the ground under Section 11 (3) has been made out.
11. In this case we are convinced that the claim put forward by the landlord would fall within the scope of Section 11 (3). Protection under the second proviso was also urged before the Rent Control Court as well as the Appellate Authority. Same was negatived by both the courts below. We find no good reason to take a different view from that of the courts below on the claim under the second proviso as well.
12. Counsel appearing for the tenant submitted that even if this Court ultimately holds that claim of the landlord falls under Section 11(3), offer made by the landlord before the Appellate Authority be kept alive. Since we have found that the claim of the landlord would fall under Section 11(3), no direction could be given. We leave it to the landlord. The revision petition is accordingly dismissed.