Kerala High Court
Gurumoorthy Gopalakrishnan vs Lakshmi Bai on 3 December, 2004
Equivalent citations: 2005(1)KLT256, 2005 A I H C 825, (2005) 1 KER LT 256, (2005) 1 RENCR 198, (2005) 1 RENTLR 391, (2005) 1 KHCACJ 210 (KER), (2005) 1 KER LJ 56
Author: K.S. Radhakrishnan
Bench: K.S. Radhakrishnan, K. Thankappan
ORDER K.S. Radhakrishnan, J.
1. Whether a construction effected by a tenant in the land appurtenant to the building would also fall within the mischief of Section 11(4)(ii) if the landlord establishes that such a construction has the effect of reducing the value and utility of the tenanted premises is the question that has come up for consideration in this case.
2. Counsel for the tenant Sri. P.A. Harish contended that even assuming that the construction had been effected by the tenant in the ground appurtenant to the building, since tenant has not used the tenanted building in such a manner as to destroy its value and utility materially and permanently, such an action of the tenant would not fall within the mischief of Section 11(4)(ii) of the Act.
3. Counsel appearing for the landlord Sri. K.T. Sankaran on the other hand contended that even if the construction is effected by the tenant in the ground appurtenant to the building and not to the building as such, the conduct of the tenant would come within the mischief of Section 11 (4)(ii) of the Act. Consequently landlord is entitled to seek eviction of the tenant on that ground.
4. Shorn of all details we may dispose of the case referring the parties as landlord and tenant. Tenanted portion of the building is marked as ABC1 in the report submitted by the Commissioner. The building and the land appurtenant thereto was rented out to the tenant by Ext.A1 rent kychit dated 15.2.1999. Ext.A1 would indicate that the portion which was rented out to the tenant is ABCI. Ext.A1 is not disputed. Ext.A1 clearly prohibits additions or alterations or even repairs in the tenanted premises. Facts would indicate that tenant has constructed the portion marked as DEFGH in Ext.C2 plan which is in front of ABCI. Tenant has got a contention that the construction DEFGH was there even before the lease. Oral evidence has been adduced by the landlord to establish the contention that what was rented out was only ABCI. DEFGH was constructed after the lease, and it was so found by both the Courts. Further Ext.A3 judgment in O.S.NO. 348 of 1988, a suit filed by the father of the landlord also would indicate that tenant is not entitled to make any further construction in the building. Therefore, the only question to be considered in this case is whether such a construction effected in the land appurtenant to the building would fall within the mischief of Section 11(4)ii) of the Act.
5. Counsel for the tenant, as we have already indicated, submitted that even if the tenanted premises is used in such a manner as to destroy its utility and value permanently and materially landlord cannot seek eviction Under Section 11(4)(i) of the Act. Tenant has effected construction in the open space appurtenant to the building which may likely to impair the value and utility of the building and the nearby land. We may refer to Section 11(4)(ii) for easy reference.
(ii) if the tenant uses the building in such a manner as to destroy or reduce its value or utility materially and permanently, or
6. Counsel on either side made reference to several decisions in support of their respective contentions. Reference to all those decisions is unnecessary since those decisions never answer the points raised in this case. However, it would be useful to refer to the decision of the Apex Court in Gurbachan Singh and Anr. v. Shivalak Rubber Industries and Ors., AIR 1996 SC 3057, which has dealt with East Punjab Urban Rent Registration Act. The question which came up for consideration in this case was whether the land appurtenant to the building has been used in such a manner as to destroy or reduce its utility and value Under Section 11(4)(ii) of the Act. The Apex Court held if the alleged additions and alterations in the premises by the tenant affect the fitness of premises for use for desirable practical purposes and intrinsic worth from the point of view of the landlord, the tenant is liable to be evicted.
7. We may point out that the provision in Section 11(4)(ii) has to be read along with the definition of the "building" in Section 2(1)oftheAct. Section 2(1) reads as follows:
(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 along with such building or hut;
(b) any furniture supplied by the landlord for use in such building or hut or part of a building or hut; .
(c) any fittings or machinery belonging to the landlord, affixed to or installed in such building or part of such building, and intended to be used by the tenant for or in connection with the purpose for which such building or part of such building is let or to be let, but does not include a room in a hotel or boarding house.
When we read Section 11(4)(ii) along with Section 2(1)(a), it is evident that Section 11(4)(ii) takes in not only the building but the garden, grounds, wells, tanks and structure, if any, appurtenant to such building, hut, or part of such building or hut and let or to be let along with such building. Therefore in a given case if the landlord could establish that the tenant has used the land appurtenant to the building which has been leased out in such a manner as to destroy or reduce its value and utility materially and permanently, landlord would have cause of action. In other words, user of the building proper in such a manner as to reduce or destroy its value and utility materially and permanently is not the only ground for eviction Under Section 11(4)(ii) of the Act, but user of the garden, grounds, wells, tanks and structures, if any, appurtenant to such building in such a manner as to destroy or reduce its value and utility materially and permanently also would attract Section 11 (4)(ii) of the Act.
8. The Apex Court in Vipinkumar v. Roshan Lal Anand and Ors., 1993 (3) JT SC 171, held that the question whether tenant has used the building in such a manner as to reduce its value and utility materially and permanently has to be judged from the point of view of the landlord and not from the point of view of the tenant or any one else. Therefore we have to examine whether the construction effected on the premises appurtenant to the tenanted building has the effect of reducing or destroying the value and utility of the building/premises materially and permanently from the point of view of the landlord. We have already indicated there is specific restriction in Ext.A1 koolie kychit against the tenant carrying on any material alteration, addition or construction in the premises. Landlord asserted that the tenant has used the building in such a manner as to destroy or reduce its value and utility materially and permanently. Tenant has to show otherwise. The Court has to come to a conclusion on the basis of materials made available to it by either side as to whether the conduct of the tenant is such that by the user of the premises/building the value and utility of the building or the ground appurtenant thereto has been reduced materially and permanently. Facts would evidently show that the tenant has not received any consent from the landlord before effecting the construction. Landlord had to rush to the civil court and to seek an order of injunction restraining the tenant from effecting construction. By the time substantial portion of the construction was already over. The Apex Court in Venkatlal C. Pittis v. Bright Bros. Pvt. Ltd., AIR 1987 SC 1398, laid down certain guidelines to determine the nature of the construction effected. We may extract the various tests laid down by the Apex Court, as follows:
i) If the structure cannot be removed without doing irreparable damage to the demised premises, then that would be certainly one of the circumstances to be considered while dealing the question of intention. Likewise the dimensions of the structure,
ii) Its removability has to be taken into consideration. But these are not the sole tests,
iii) The purpose of erecting the structure is another relevant factor,
iv) The nature of the materials used and
v) The durability of the structure.
Section 108 of the Transfer of Property Act, especially Clause (p) has been incorporated in some rent control legislation, such as Karnataka Act, West Bengal Act, Assam Act, etc. Section 108(p) prohibits the tenant from erecting any permanent structure on the land. If he so erects it is liable to be removed according to the provisions of Clause (p). So far as Kerala Rent Act is concerned, the removal of unauthorised construction hardly matters, the tenant will have to face a plea of eviction. Nature of construction effected by the tenant is always relevant criterion to be taken into consideration in such circumstances. We have gone through the Commission Report and we have noted the portion constructed. Tenant has constructed nearly three times of the area of the building which was rented out to him. Portion constructed would also indicate that it is a better construction compared to the portion rented out to him. Substantial area of the front portion of the building has been used for construction. Plan would indicate that the tenant has constructed the sitting room, work area, bath room, which occupies substantial portion of the open space. Facts also would indicate that tenant was using not only the tenanted portion but also the portion DEFGH wherein he has effected construction. Landlord submitted that since construction has been effected in open space he has lost the luxury of an open space leave aside obstruction created for the free flow of air and light to the tenanted building. On facts, we are of the view, construction effected by the tenant has the effect of destroying or reducing the value and utility of the building and the ground appurtenant to the building. In such circumstance's, we find no reason to interfere with the judgment of the Rent Control Appellate Authority. However, considering the facts and circumstances of the case, the tenant is given time upto 31.3.2005 for vacating the premises on condition that the tenant should file an undertaking in the form of an affidavit before the Rent Control Court within one month from today stating that he would vacate the premises within the aforesaid period, and would pay arrears of rent, if any, and future rent