Kerala High Court
A.M. Prabhakaran vs Chithappa Sulaikabi on 9 February, 2007
Bench: K.A.Abdul Gafoor, Antony Dominic
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP No. 2012 of 2001(M)
1. A.M. PRABHAKARAN
... Petitioner
Vs
1. CHITHAPPA SULAIKABI
... Respondent
For Petitioner :SRI.S.V.BALAKRISHNA IYER (SR.)
For Respondent :SRI.A.P.CHANDRASEKHARAN (SR.)
The Hon'ble MR. Justice K.A.ABDUL GAFOOR
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :09/02/2007
O R D E R
K.A.ABDUL GAFOOR &
ANTONY DOMINIC, JJ.
-------------------------
C.R.P.No.2012 of 2001
-------------------------
Dated this the 9th day of February, 2007.
O R D E R
Abdul Gafoor, J.
This revision is by the tenant resisting orders of eviction on the ground available under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act [Act 2 of 1965] {hereinafter referred to as 'the Act'}.
2. The landlady required the building bona fide for the occupation of her son. This was contested on the ground that there was any such bona fide as the said son was employed abroad. But, it has come out in evidence that the son of the landlady had returned to his native place. In such circumstances, the concurrent finding of bona fide cannot, any more, be resisted on that basis. The further contention of the tenant was that he was entitled to the protection of Section 11 (17) of the Act. The said Section did not permit eviction on the ground of bona fides in case the tenant was occupying 'as C.R.P.NO.2012/01 :: 2 ::
a tenant' prior to 1.4.1940 onwards. There was dispute as to whether the occupation continued prior to 1.4.1940. But, there was doubt as to whether the protection available under Section 11(17) would be applicable to the legal heirs of the original tenant, who continued occupation from a date earlier than 1.4.1940. This aspect was concluded by the Full Bench in Narayanan v. Shalina {2003(2) K.L.T. 317}. But the Full Bench, which considered this case, doubted the decision in that case. Accordingly, it was referred to a larger bench consisting of 5 Judges. It has been held by the larger bench per majority that the benefit available under Section 11(17) will not be available to the heirs of the original tenant, who had been in occupation since a date earlier than 1.4.1940. In such circumstances, even if the contention of the tenant that the tenancy commenced earlier than the said date is accepted, he cannot get the protection available under Section 11(17) of the Act. Consequently, the revision has to be dismissed confirming the findings of the authorities below. We do so. C.R.P.NO.2012/01
:: 3 ::
Anyhow, the tenant is granted three months' time to surrender vacant possession of the building, subject to payment of arrears of rent, if any.
Sd/-
(K.A.ABDUL GAFOOR) JUDGE Sd/-
(ANTONY DOMINIC) JUDGE sk/ //true copy// IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR. V.K.BALI, THE HONOURABLE MR.JUSTICE K.A. ABDUL GAFOOR, THE HONOURABLE MR. JUSTICE KURIAN JOSEPH, THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR, & THE HONOURABLE MR. JUSTICE K. PADMANABHAN NAIR.
C.R.P.No.2012 of 2001 - E R.C.A. No.218 of 1998 of Rent Control Appellate Authority, (Dist. Judge, Kozhikode.
R.C.P. No.53 of 1997 of Munsiff & Rent Controller, Kozhikode. PETITIONERS in C.R.P./Appellants in R.C.A./Respondents in R.C.P.:
1. A.M. PRABHAKARAN, S/o.A.M. VELAYUDHAN, ADHIKARI THARAMMAL, POST ARIYALLUR, MALAPPURAM DISTRICT.
2. A.V. SAVITHRI, D/o. -DO- in -DO- -DO-.
3. A.M. SAROJOINI, D/o. -DO- in -DO- -DO-.
4. A.M. BALACHANDRAN, S/o. -DO- in -DO- -DO-.
5. A.M. SREEDEVI, D/o. -DO- in -DO- -DO-.
6. A.M. SANTHA, D/o. -DO- in -DO- -DO-.
7. A.M. RADHA, D/o. -DO- in -DO- -DO-.
BY Advs. M/s. S.V. BALAKRISHNA IYER (Sr.) & P.B. KRISHNAN. RESPONDENT in C.R.P./Respondent in R.C.A./Plaintiff in R.C.P.:
CHITHAPPA SULAIKABI, D/o.AHAMMED KUNHI AND W/o.PULIKKAL - SHAMSUDDEEN, PUTHIYANGADI AMSOM DESOM, KOZHIKODE TALUK AND DISTRICT.
BY Advs. M/s. A.P.CHANDRASEKHARAN (Sr.), PRABHA R. MENON, PUSHPA RAJAN KODOTH, M. KRISHNA KUMAR & T. SETHUMADHAVAN.
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11.01.2007, THE COURT ON 23.1.2007 PASSED THE FOLLOWING: C.R.P.NO.2012/01
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V.K. Bali, C.J., K.A. Abdul Gafoor, Kurian Joseph, K. Balakrishnan Nair & K. Padmanabhan Nair, JJ.
- - - - - - - - - - - - - - - - - - - - - - -
C.R.P.No. 2012 of 2001-E
- - - - - - - - - - - - - - - - - - - - -- -
Dated, this 23rd day of January, 2007.
Order V.K.Bali,C.J. (Concurring with K.Padmanabhan Nair, J.) I have gone through the illuminative concurring judgments of Abdul Gafoor and Balakrishnan Nair, JJ. as also the concurring judgments of Kurian Joseph and Padmanabhan Nair, JJ. expressing however, a different view than the one expressed by Abdul Gafoor and Balakrishnan Nair, JJ. The present may be one of the rarest of rare cases where every Honourable Member of the Bench has chosen to write, even though concurring with the other, his own judgment. May be that the Honourable Member of the Bench concurring with the other wished to express the same view point in his own way.
2. I have given deep and anxious thought to both the views and after considering and reconsidering the whole issue, I have come to the conclusion that the view expressed by Kurian Joseph and Padmanabhan Nair, JJ. appears to be correct. With respect, thus, I would C.R.P.NO.2012/01 :: 6 ::
differ with the view taken by Abdul Gafoor and Balakrishnan Nair, JJ. Tenant means any person by whom or on whose account rent is payable for a building and includes the heir or heirs of a deceased tenant as would be made out from Section 2(6) of the Kerala Buildings (Lease and Rent Control) Act, 1965. A tenancy is heritable, but the crucial question in the present case is as to whether a privilege conferred upon a tenant for his non-eviction even in a case where the landlord may require the demised premises for his bona fide requirement is also heritable. In my considered view, the plain language employed in Section 11(17) of the Act would manifest that the privilege for non-eviction is of a tenant who has been in continuous occupation of a building from 1st April, 1940 as a tenant. Such a tenant is not liable to be evicted for bona fide occupation of the landlord or of a member of the family dependent upon the landlord. The tenancy may be heritable, but a special privilege enjoyed by a tenant for his non-eviction is personal and such a personal privilege is not and cannot be heritable. The heir of a tenant may succeed to the right of his predecessor but he cannot succeed to the personal privilege enjoyed by his predecessor conferred upon by virtue C.R.P.NO.2012/01 :: 7 ::
of he being in possession since 1st of April, 1940. The continuous possession from 1st April 1940 alone clothes a tenant with a privilege for non-eviction and such a continuous possession can be only peculiar to a tenant actually occupying the premises and no occupation conferring such a privilege like non-eviction can be heritable. In my considered view, it is not a case which may require a debate with regard to adding to or deleting from the existing provisions in the statute. The statute confers a privilege to a tenant by the dint of his occupying the premises from 1st April, 1940 and it is that tenant only who would have the privilege of non-eviction. If, perhaps, this Court was to interpret the provisions under debate or discussion, naturally, all principles of interpretation as mentioned in the concurring judgments of Kurian Joseph and Padmanabhan Nair, JJ. would apply. Surely, the right of a tenant cannot nurture into ownership and if the heir of a tenant is to inherit the privilege of non-eviction as well, it would be a virtual conferment of ownership subject to payment of rent which may be pittance, settled way back in 1940 or even before. This conclusion needs to be arrived at by pure and simple interpretation of the statute in the C.R.P.NO.2012/01 :: 8 ::
context of objects and reasons of the Act of 1965 without in any manner, whatsoever, adding to or deleting from the existing provision.
Sd/-
V.K.Bali, Chief Justice.
A bdul Gafoor, J.
(Dissenting with K.Padmanabhan Nair, J.)
3. 'Eviction of tenants' is the caption of Section 11 of the Kerala Buildings (Lease and Rent Control) Act [Act 2 of 1965] {hereinafter referred to as 'the Act'}, which contains several sub-sections, provisos and explanations.
4. The word 'tenant' appears in several of such sub- sections, provisos and explanations. That expression is defined in Section 2(6) of the Act as follows:
"tenant" means any person by whom or on whose account rent is payable for a building and includes -
(i) the heir or heirs of a deceased tenant, and
(ii) a person continuing in possession after the termination of the tenancy in his favour, but does not include a kudikidappukaran as defined in the Kerala Land Reforms Act, 1963 (Kerala Act 1 of 1964), or a person to whom the collection of rents or fees in a public market, cart stand or slaughter house house or of rents for shops has been framed out or leased by a Municipal Council, Municipal Corporation, C.R.P.NO.2012/01 :: 9 ::
Township Committee or Panchayat."
5. Therefore, heir or heirs of a deceased-tenant also come within the statutory definition of tenant.
6. The question coming up for consideration, on reference by a Full Bench, is whether heirs of a deceased- tenant are "entitled to claim the benefit of immunity from eviction under Section 11(17) of the Act as an inherited right in a Rent control Petition filed in the year 1997?"
7. The building in question was let out, according to the landlady, on 17.11.1950 and according to the tenants on 1.4.1936. The Full Bench, while referring the case, found prima facie sustenance in the contention of the tenants that the tenancy commenced on 1.4.1936. The tenant so put in possession was one Velayudhan, the father of the revision petitioners against whom the respondent/landlady filed a petition for eviction alleging that they were liable to be evicted on the ground of her bona fide need for own occupation.
8. The petition was mainly contested by the revision C.R.P.NO.2012/01 :: 10 ::
petitioners/tenants urging immunity from eviction available under Section 11(17) to "a tenant, who has been in continuous occupation of a building from 1.4.1940 as a tenant." The immunity provided for in the sub-section is absolute in respect of tenancies other than for residence, but qualified as regards the tenancy in respect of residential building. The building in question is a non-residential building. Therefore, if the revision petitioners are found to be in continuous occupation of the building as tenants from 1.4.1940, necessarily, the benefit, protection, privilege or immunity envisaged in sub-section (17) of Section 11 will be available to them. Application of Section 11(17) has been earlier dealt with by a Full Bench of this court in an earlier case reported in Narayanan v. Shalina {2003(2) K.L.T. 317}.
9. While considering the contention of the revision petitioners, a Division Bench noticed that several decisions of the Supreme Court including that in Gian Devi v. Jeevan C.R.P.NO.2012/01 :: 11 ::
Kumar {AIR 1985 S.C.796} have not been placed before that Full Bench, which held that the word 'tenant' appearing in Section 11(17) of the Act should have been given a restricted meaning, as the privilege or benefit available under that provision was personal to the tenant who occupied the building from 1.4.1940 onwards. Therefore, the matter was placed before a Full Bench consisting of three Judges.
10. After elaborately discussing the ratio in Gian Devi's case, that Full Bench was of the view that "in the absence of restrictive provision, the legal heirs of the tenant have, at least after the commencement of the Act, a heritable right of all rights and privileges of the deceased tenant". That Full Bench was also of the view that if the ratio in Narayanan's case were to be driven to its logical conclusion, "then the privilege being personal to the particular tenant, it will die with the person regardless of the date of death of the said tenant precluding his legal heirs from contending that they C.R.P.NO.2012/01 :: 12 ::
have inherited the estate to which the said privilege is also attached". The Bench also doubted whether "such a consequence has been envisaged or intended by the legislature". According to the Bench, these are "some of the nuances of the question for which no answer seems to be provided by the interpretation placed on the provision by the Full Bench". Accordingly, that Full Bench consisting of three Judges felt it to be considered by a larger bench. Therefore, this reference.
11. Of course, the case of the tenants revolves on the question whether they are entitled to the protection envisaged in Section 11(17) of the Act. But even now it is not conclusively found finally as to when the tenants commenced continuous occupation to consider whether, they will come within the umbrella of Section 11(17). There is also a debate as to whether the findings in an earlier proceedings act as res judicata against the tenants to urge the contention centered around Section 11(17). If finding on any of these points is C.R.P.NO.2012/01 :: 13 ::
rendered against them, necessarily, the point referred does not arise at all. It is afraid, whether the decision by this Bench will become on a point not arising in the case. Therefore, this exercise by a bench of five Judges ought to have been avoided awaiting final finding on the said points by a bench of less number of Judges or even by decision by the lower tribunal, if remand is required, as opined by the referring Bench. Anyhow, the Bench proceeded to answer the reference.
12. The claim of the revision petitioners for protection of Section 11(17) is resisted contending that, the benefit provided in that provision is only personal to the incumbent who was in occupation of the building on 1.4.1940 and continuously thereafter. If heir/heirs are brought in within its purview, it will result in permanent tenancy in favour of them.
13. As pointed out at the threshold, Section 11 deals with eviction of tenants and 'tenant' is defined in Section 2(6) of the Act to include 'heir or heirs of a deceased-tenant'. The word 'tenant' is repeatedly used, apart from in the C.R.P.NO.2012/01 :: 14 ::
caption of the Section, in several of the sub-sections, provisos and explanations forming part of Section 11 which runs into pages. When a word used in a Statute is defined in the interpretative Section, unless any other situation or context arises, that word appearing in several parts of the statute has to be ascribed the same meaning; and a different meaning cannot be attributed to the same word specifically defined.
14. A tenant defending a petition for eviction on various grounds urged in Section 11(2), in 11(3), in different clauses of Section 11(4) etc., can be the heir or heirs of the person, with whom the tenancy agreement was entered into. The tenant, who is defending eviction proceedings contending any of the protections or benefits envisaged in the provisos to Section 11(3) can also be such heir. A person opting for space in the building after eviction on the ground of reconstruction of the tenanted premises in terms of the 2nd proviso to Section 11(4)(iv) can also be a heir of the person who has been C.R.P.NO.2012/01 :: 15 ::
evicted, if he is dead by that time. Similarly, if the landlord does not occupy the premises from which a tenant has been evicted on the ground of bona fide need within the prescribed period, a heir of a deceased tenant, who has been thus evicted, can also seek reoccupation in terms of Section 11 (12). The word 'tenant' employed in the provisions covering these different situations is interpreted in the same way as defined in section 2(6) to include the heirs and it does not admit a different shade of meaning. In such circumstances, is it justified to give a different meaning to the word 'tenant' employed in Sub-section (17) of Section 11? This is the question debated.
15. The said provision reads as follows:
'Notwithstanding anything contained in this section a tenant who has been in continuous occupation of a building from 1st April 1940 as a tenant shall not be liable to be evicted for bona fide occupation of the landlord or of the occupation by any member of his family dependent on him, provided that a landlord of a residential building shall be entitled to evict such a tenant of that building if the landlord has been living in a place outside the city, town or village in which the building is C.R.P.NO.2012/01 :: 16 ::
situated for a period of not less than five years before he makes an application to the Rent Control Court for being put in possession of the building and requires the building, bona fide for his own permanent residence or for the permanent residence of any member of his family or the landlord is in dire need of a place for residence and has none of his own."
16. The word 'tenant' wherever used in this provision is not denoted by a definite article. This provision contains a protection, benefit or privilege for a 'tenant' in continuous occupation of a building from 1.4.1940 onwards.
17. Sub-section (12) of Section 11 also envisages another protection, benefit or privilege available to a tenant in the following words:
"Where a landlord who has obtained possession of a building in pursuance of an order sub-section (3), does not occupy it without reasonable cause within one month of the date of obtaining possession, of having so occupied it, vacates it without reasonable cause within six months of such date, the tenant who has been evicted may apply to the Rent Control Court for an order directing that he shall be restored to possession of the building, and the Court shall make an order accordingly notwithstanding anything contained in Section 4."
C.R.P.NO.2012/01
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18. The word 'tenant' employed in this provision is with a definite article. Even then, that privilege is available to the heir or heirs of the evicted person as well. In other words, if a tenant has been evicted by a landlord urging the ground under sub-section (3) of Section 11 and if the landlord does not occupy the building without reasonable cause within a month from the date of obtaining possession of the building or after occupying it vacates it within six months without reasonable cause, the evicted tenant is enabled to seek an order from the Rent Control Court to restore him to possession. This benefit available to the evicted tenant, in case of his death can be claimed by his heir or heirs as well, going by the definition of the word tenant in Section 2(6) of the Act. A Division Bench of this court also has taken that view in the decision reported in George Peter v. T.K.Sali {ILR 1999(1)Kerala 529}. In that case, a tenant who has been ejected out on the ground of bona fide need of the landlord, having found that the latter did not make use of the C.R.P.NO.2012/01 :: 18 ::
building for such bona fide need, invoked Section 11(12). During the pendency of the petition so he filed, he died. His heirs sought for impleadment. This was resisted by the landlord on the ground that "after the death of the original tenant, his legal heirs would not get a right to get themselves impleaded in order to contest the proceedings as the right given by the statute to an evicted tenant is a right personal to him". The Rent Controller as well as the appellate authority did not accept that objection raised by the landlord. The matter was carried to this court, in revision under Section 20 of the Act. Considering the point, the Division Bench held that:
"It has to be remembered that even if the statutory tenant has no estate or property in the demised premises, once the Act has created a right in such a tenant in respect of the property by widening the definition of the expression 'tenant' so as to include the heirs of a deceased tenant, the latter will be entitled to claim all the rights of the original tenant."
19. Section 11(13) deals with a situation where a C.R.P.NO.2012/01 :: 19 ::
tenant does not avail of the privilege or benefit in terms of Sub-section (12). But that in no way restricts the meaning of the word tenant employed in Section 11(12) to have a different look on the dictum in George Peter's case.
20. The Full Bench in Narayanan's case while holding that "the protection under S.11(17) .... must certainly be reckoned as a personal privilege or protection available to the tenant actually in continuous occupation from the relevant date 1.4.1940 and not to his successors" did not advert to the decision in George Peter's case (referred supra) nor to the position of a tenant exercising a similar benefit or privilege available in Section 11 (12), as in sub-section (17), to ascribe the meaning of the word 'tenant' appearing in both the provisions conferring benefits/privileges on the tenant, in a uniform manner. The meaning of the word 'tenant' appearing in sub-section (12) and sub-section (17) has to be similarly construed. It is a well-established rule of interpretation that while interpreting a C.R.P.NO.2012/01 :: 20 ::
particular provision of a statute, courts should bear in mind the object and scheme of the entire Act. A particular provision of the Act cannot be considered or interpreted in isolation so as to give room for conflict inter se between the provisions of the same Act.
21. At this juncture, one cannot be unmindful of the provisions in Section 11(11)(i) where, the same word 'tenant' may have a different shade in its meaning. The said provision reads:
"Notwithstanding anything contained in sub-sections (1) to (10) no order for eviction or for putting the landlord in possession shall be passed, --
(i) against any tenant who is engaged in any employment or class of employment notified by the Government as an essential service for the purpose of this sub-section, unless the landlord is himself engaged in any employment or class of employment which has been so notified, and the landlord requires the building for his own occupation; or
(ii) in respect of any building which has been let for use as an educational institution, and is actually being used C.R.P.NO.2012/01 :: 21 ::
as such, provided that the institution has been recognised by the Government or any authority empowered by them in this behalf, so long as such recognition continues."
22. This provision also contains certain limited benefit or protection to a tenant in its 1st segment and in respect of the use of the building let out in its second segment. The word 'tenant' used in its 1st segment is qualified by the expression "who is engaged in employment notified by the Government as an essential service ...". Therefore, the benefit or protection is only for the persons employed in a particular manner. It rarely happens that heir/heirs also become similarly employed to earn that protection. Therefore, the context clearly spells out a different meaning in consonance with the limited and specified benefit or protection envisaged in that sub-section.
23. But when the word 'tenant' used in section 11 (17) is qualified with the expression 'who has been in continuous occupation' that takes in the 'tenant', who includes, going by the definition, 'the heir or heirs of a C.R.P.NO.2012/01 :: 22 ::
deceased tenant' also. This is with the same import as contained in Section 11(12) dealt with in George Peter's case referred to supra. Because, it does not refer to quality or employment of the tenant as in Section 11(11)(i).
24. The explanation to section 11(17) also is not capable of giving any different connotation to the word 'tenant' employed in that sub section. The explanation reads:
"In computing the period of continuous occupation from 1st April, 1940, the period, if any, during which the landlord was residing outside the city, town or village in which the building is situated shall be excluded."
25. It is possible that even during the currency of a tenancy a tenant may not physically occupy a building for some time. In such circumstances, that provision, even if he was in occupation initially from 1.4.1940, may not cloth him with the benefit, protection or privilege available in terms thereof. Because he will not be in continuous occupation, though a tenant continuously. So far as such a person is concerned, that period when he was not in real occupation of C.R.P.NO.2012/01 :: 23 ::
the building, while the tenancy subsisted, will be excluded if during that period the landlord was residing outside the city, town or village, where the building is situated. This being the purpose of the explanation, it does not in any way give a different shade of meaning to the word 'tenant' employed in Section 11(17) to that contained in the definition clause.
26. The Full Bench in Narayanan's case was considering a case relating to tenancy commenced in 1919. In that case, the person with whom the premises were originally entrusted expired in the year 1941. His heirs continued the occupation after his death. Thereafter, they formed a partnership in the year 1951, a different entity; and renewal lease deed was also executed. Thus, the said case did have a different fact frame. Whether the son of the said original tenant did fall within the definition of 'tenant' as available at the time of death of the original tenant is also doubtful. Anyhow, the subsequent partnership cannot be termed as the heir of the deceased tenant to attract Section 11(17). C.R.P.NO.2012/01
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Whatever that be, adverting to the definition as presently appearing in the statute, the import of Section 11(17) was considered, and the Full Bench was of the view that this provision, if understood in that manner "would virtually amount to a perpetual clog on the right of the landlord to claim eviction under section 11(3) from a tenant" and that such a clog or fetter has to be understood fairly and reasonably without offending the provisions of the Constitution which mandate 'freedom from inequality and arbitrariness'. According to the Full Bench in Narayanan's case, from 1.4.1940 to the enforcement of the present Act, there was a gap of 25 years. But the section did not envisage such protection to any tenant with 25 years of continuous occupation and it was an indication to suggest that "Section 11(17) confers only the personal privilege and protection to the tenants who were in possession on 1.4.1940 and not to their legal heirs". That Full Bench was also of the view that extension of such benefit "would C.R.P.NO.2012/01 :: 25 ::
amount to fetter and clog in perpetuity against the claim for eviction under Section 11(3)" and that "there is nothing in the language of Section 11(17) or the scheme of the Act which suggests that legislature wanted to place such an unreasonable fetter on the right of the landlords". The Full Bench considered the view taken in Sarojini & ors. v. Safia & another {C.R.P.No.2107 & 2108/92} and that in Viswanathan v. Abdul Hameed{2000(3) K.L.T. 712} and approved the ratio in the former and disagreed with the latter holding that extension of "the benefit of Section 11(17) to legal heirs of the tenant cannot be accepted as laying down the correct law".
27. In Sarojini's case (C.R.P.No.2107 & 2108/92), the court was of the firm view that:
"We are not persuaded to entertain the contention of the revision petitioner based on Section 11(17) ...."
In spite of that, that point was adverted to referring to a decision in O.P.No.1045/62, wherein it has been held that: C.R.P.NO.2012/01
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"in cases where a tenant is not able to prove that he has been in continuous occupation of building from 1st April, 1940, Sub-Section (17) of Section 11 would have no application."
28. This finding was not after examination whether a heir will come within the word 'tenant', in extenso. Moreover, the definition available at that time was not as wide as that now in section 2(6) of the Act. After adverting to the said finding, the Bench in Sarojini's case simply compared the present Section 11(17) and that in the 1959 Act as identical and concluded that:
"We are of the view that the benefit of the protection under Sec. 11(17) is available only to the tenant who was inducted into possession prior to the date and continued to be in possession on the date of proceedings for eviction and his legal representatives, who, came into the category of tenants by virtue of the inclusive definition in Sec.2(6) of the Act cannot claim the protection", again without examining the import of the definition of tenant contained in section 2(6) and the context of the word used in provisions similar and dissimilar to Section 11(17). At the same time, Viswanathan's case also did not consider C.R.P.NO.2012/01 :: 27 ::
application of Section 11(17) with reference to the meaning of the word 'tenant'. It was really a case where an implied surrender was alleged as a reason to resist application of Section 11(17). Therefore, these two cases do not throw much light on the point.
29. In a later decision reported in Prasannan v. Haris {ILR 2005(2) Kerala 373}, a division bench has followed Narayanan's case, to the effect that:
"protection under Section 11(17) can be claimed only by a tenant who was in possession of the building on or before 1940 and it cannot be claimed by his legal heir who succeeded the original tenant after 1940 as it is a personal right. It was concurrently found on the basis of evidence that even the original tenant was not in possession of the building in 1940 and therefore, the tenant is not entitled to the benefit of Section 11(17).
30. But the passage just preceding the said dictum will reveal that such an issue did not arise at all in that case. That passage reads:
"It has come out in evidence that in 1963 Bata Shoe Company Limited was the tenant in the petition schedule building and the original tenant came into possession only after 1963. Further, no C.R.P.NO.2012/01 :: 28 ::
documentary or admissible evidence was adduced by the tenant to show that even the original tenant was in continuous occupation of the building before 1940."
31. There is also no useful discussion on the point in that case. Moreover, the question posed in that case was:
"Whether a legatee under the Will is a 'heir'."
Legatee is not a heir and often a legatee excludes a heir from inheritance fully or partially. A Will is required for a legatee to succeed as he is not always a heir or to succeed to the extent bequeathed. On any count, Prasannan's case is of no help to answer the issue.
32. Examination of the provisions in the statute which preceded the present Act will disclose that provision similar to section 11(17) was already on statute book even at that time. Therefore, the view in Narayanan's case that protection is not given to the tenants who are in continuous occupation for a period of 25 years or more after the Act came into force is indicative to suggest a different meaning to Section 11(17), cannot be stated to be a logical conclusion. The purpose of C.R.P.NO.2012/01 :: 29 ::
the provision is not to confer a benefit, privilege or protection to tenants who complete a particular period of tenancy, but to a class of tenants with reference to a definite date of commencement of continuous occupation of the tenanted premises. Such a classification with such reasonable nexus is with the object of conferring a benefit, privilege or protection to a definite class of tenants. Such a provision remaining on statute book unquestionably for a very long period of decades together cannot be termed to offend the 'right to equality'.
33. There are other Acts like Delhi Rent Act which created a complete clog against eviction from building let out for commercial purpose. Section 11(17) is not a complete clog on eviction. On other grounds and in cases of non-occupation even on the ground under Section 11(3), eviction can be sought for. Moreover, even if a clog, legislature is competent enough to legislate that clog. There is no challenge against that provision. So the limited clog under Section 11(17) is not a reason to attribute a different meaning to the word 'tenant'. C.R.P.NO.2012/01
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34. When the legislature has defined the word 'tenant' and when no restrictive meaning, by indication or from context, can be ascribed to that expression appearing in sub-section (17) of Section 11, as is manifest in Section 11 (11)(i), there is no reason at all to ascribe a different meaning to the word 'tenant', to that contained in the definition clause.
35. It is now trite that tenancy creates an interest; and that right, though limited, is heritable.
36. As held in Damadilal v. Parashram, (1976) 4 SCC 855:
"Tenancy has its origin in contract. There is no dispute that a contractual tenant has an estate or property in the subject- matter of the tenancy, and heritability is an incident of the tenancy."
37. The Supreme Court in Gantusa H. Baddi v.
Meerabai G. Pai (2000) 4 SCC 586 ) considered the question whether the tenancy for non-residential purpose can be held to be heritable under the Karnataka Rent Control Act and held that, both in the case of contractual tenancy and statutory tenancy, the quality of the estate or interest is C.R.P.NO.2012/01 :: 31 ::
the same. In that case, the Apex court adverted to a Constitution Bench decision in Gian Devi Anand v. Jeevan Kumar (1985) SCC 589, wherein it has been held that, "The mere fact that in the Act no provision has been made with regard to the heirs of tenants in respect of commercial tenancies on the death of the tenant after termination of the tenancy, as has been done in the case of heirs of the tenants of residential premises, does not indicate that the legislature intended that the heirs of the tenants of commercial premises will cease to enjoy the protection afforded to the tenant under the Act."
In this respect, it is to be borne in mind that Kerala Act expressly includes heir/heirs of deceased tenant within the definition of tenant.
38. It has also been held in H.C.Pandey v. G.C.Paul {AIR1989 SC 1470} that:
"It is now well-settled that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant."
But it may be noted that in Kerala Act, there is no provision C.R.P.NO.2012/01 :: 32 ::
"negativing or limiting the succession" but heirs are expressly and without limitation put in the place of their predecessor for the purpose of considering them as tenants. The same is the tenor of the decision reported in Imdad Ali v. Keshav Chand (2003) 4 SCC 635 that, a successor-in- interest of a tenant holds his tenancy right subject to rights and obligations of his predecessor. So, there is no reason to deny the heirs the right their predecessor had, especially in the light of the explicit definition of "tenant" in Section 2(6) to include the heir or heirs of a deceased tenant.
39. In George Peter's {ILR 1999(1) Kerala 529} case also, a division bench of this court held that:
"There is no provision in the Act negativing or limiting the right of the heirs from stepping into the shoes of the deceased tenant."
Noting this, another division bench of this court in Prasannan, C.K. v. T.P.Haris and others {2005(2) ILR 373} also took the view that "statutory tenant has heritable interest in C.R.P.NO.2012/01 :: 33 ::
the premises".
40. Thus it is trite that whatever be the right or interest of a tenant, it is heritable.
41. For the purpose of Section 11(17), the tenancy created with a person shall be on or before 1.4.1940, and he shall continue to occupy the premises demised as a tenant. On the other hand, mere continuance of tenancy is not sufficient to avail of that benefit or protection. Such a tenant in continuous occupation cannot be evicted on the ground of bona fide need of the landlord, in respect of a non-residential building as in this case. When that tenancy is heritable, the heirs of the original tenant succeeding to the estate continue to be the tenants by reason of the definition of the term 'tenant' in Section 2(6) that tenant includes - the heir or heirs of a deceased tenant as well. The tenant continues with the tenancy so continued. The benefit, protection or privilege available under Sub-section (17) of Section 11 is to the tenant in a tenancy arrangement which continues, subject C.R.P.NO.2012/01 :: 34 ::
to the condition of continued occupation from 1.4.1940. That continued occupation is not the occupation of the person with whom the contract of tenancy was entered into, but of the 'tenant' in the tenancy arrangement. By definition, the word 'tenant' includes the heir or heirs of the person to whom the building was so entrusted on commencement of tenancy, in case of his death. Because as pointed out in Damadilal v. Parashram, (1976) 4 SCC 855:
"The Rent Control and Tenancy Acts create a special world of their own. They speak of life after death. The statutory tenancy arises phoenix-like out of the ashes of the contractual tenancy.
The contractual tenant may die but the statutory tenant may live long thereafter. The statutory tenant is an ex- tenant and yet he is a tenant."
42. Section 11(17) certainly confers a benefit, protection or privilege to a 'tenant' who has been in continuous occupation of a building from 1.4.1940. In the case of death of the tenant to whom the building was originally entrusted from 1.4.1940, leaving his heirs, necessarily, that C.R.P.NO.2012/01 :: 35 ::
continuous occupation is continued by the tenant through those heirs, because the definition indicates that 'tenant' includes his 'heir or heirs' as well. As held in Imdad Ali {2003(4) S.C.C. 635}, 'by reason of death of the original tenant a new tenancy is not created'.
43. The long title to the Act indicates that the Act is to regulate the leasing of the building and to control the rent. Noting this the Full Bench in Narayanan's case has opined that "it may not be proper to reckon the Act as one conferring the benefits on the tenants alone." The reasons for enactment of the Act reveals that it is intended to, apart from regulating letting of buildings, "the prevention of unreasonable eviction of tenants from building" also. Section 11(17) is such a provision with that end in view, of preventing eviction of a tenant occupying the building right from 1.4.1940 onwards, alleging bona fide need of the landlord to occupy it for some purpose.
C.R.P.NO.2012/01
:: 36 ::
44. As held in Imdad Ali v. Keshav Chand (2003) 4 SCC 635, "When the heirs of a tenant acquire benefit under the Act, the same would be subject to such limitation and liability which has been provided under the Act."
But while including heirs also in the definition of tenant in the Act, the legislature has not intended or indicated any limitation or restriction. On the other hand, before the amendment of the definition clause, the tenant included only the surviving spouse or a son or a daughter of the deceased tenant who had been living with him as a member of the family up to the date of his death. But by reason of the amendment effected by Act 7/66 to be effective from 20.7.1966, the definition has been expanded to include heir or heirs of the deceased tenant irrespective whether they are living with the deceased tenant or not. Thus, unlike in other similar legislations, the Kerala Act has expanded further an unrestricted definition of 'tenant' to include all heirs. This is yet another indication of the legislative intent.
C.R.P.NO.2012/01
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45. When the benefit or protection from eviction is given to a tenant, who includes heir/heirs as well, necessarily there is no reason to ascribe a restrictive meaning to the word 'tenant', which the legislature has not expressly indicated, or which does not arise from context, to confine it only to the person to whom the premises has been entrusted at the commencement of the tenancy.
46. On the other hand, a perusal of similar legislations prevalent in other States, will reveal that the legislatures there had conferred only restrictive benefits or privileges to the heirs of the deceased tenant.
47. Definition of 'tenant' in Delhi Rent Control Act, 1958 is as follows:
"2(l) "tenant" means any person by whom or on whose account or behalf the rent of any premises is or, but for a special contract, would be, pay, and includes:--
(i) a sub tenant;
(ii) any person continuing in possession after the
termination of his tenancy; and
(iii) in the event of the death of the person continuing in
possession after the termination of his tenancy, subject to the C.R.P.NO.2012/01 :: 38 ::
order of succession and conditions specified, respectively, in Explanation I and Explanation II to this clause, such of the aforesaid person:--
(a) spouse
(b) son or daughter, or, where there are both son and
daughter, both of them,
(c) parents,
(d) daughter-in-law, being the widow of his pre-deceased
son, as had been ordinarily living in the premises with such person as a member or members of his family up to the date of his death, but does not include:--
(A) any person against whom an order or decree for eviction has been made, except where such decree or order for eviction is liable to be re-opened under the proviso to Section 3 of the Delhi Rent Control (Amendment) Act, 1976, (18 of 1976). (B) any person to whom a licence, as defined by Section 52 of the Indian Easements Act, 1881 (5 of 1882) has been granted.
Explanation II -- If the person, who acquires, by succession, the right to continue in possession after the termination of the tenancy, was not finally dependent on the deceased person on the date of his death, such successor shall acquire such right for a limited period of one year, and, on the expiry of that period, or on his death, whichever is earlier, the right of such successor to continue in possession after the termination of the tenancy shall become extinguished.
Explanation III -- For the removal of doubts, it is hereby C.R.P.NO.2012/01 :: 39 ::
declared that:--
(b) the right of every successor, referred to in Explanation I, to continue in possession after the termination of the tenancy shall be personal to him and shall not, on the death of such su ccessor, devolve on any of his heirs". [Emphasis supplied}
48. Karnataka Act provides that:
(n) "Tenant" means any person by whom or on whose account or behalf the rent of any premises, is or but for a special contract would be, payable, and includes:--
(i) a sub-tenant;
(ii) any person continuing in possession after the
termination of his tenancy, but does not include any person to whom a licence as defined in section 52 of the Indian Easements Act, 1882 (Central Act 5 of 1882) has been granted.
5. Inheritability of tenancy -
(1) In the event of death of a tenant, the right of tenancy shall devolve for a period of five years from the date of his death to his successors in the following order, namely --
(a) spouse
(b) son or daughter or where there are both son and
daughter both of them;
(c) parents;
(d) daughter-in-law, being the widow of his predeceased
son:
C.R.P.NO.2012/01
:: 40 ::
Provided that the successor has ordinarily been living or carrying on business in the premises with the deceased tenant as a member of his family up to the date of his death and was dependent on the deceased tenant:"
[Emphasis supplied]
49. But, in the Kerala Act, no such restriction is expressly made in the definition clause nor impliedly spelt out from the context of using that expression in Section 11(17).
50. If the benefit, protection or privilege available in Section 11(17) is confined to the person with whom the tenancy arrangement started on 1.4.1940 or earlier alone, as held in Narayanan's case, its effect is to delegislate and delete that provision from the statute book. Taking into account, the probable age of the tenant on or before 1.4.1940 and the lapse of time thereafter, it is not likely that such a person may be available or if at all available he will be an octogenarian who will also have to surrender soon that privilege to the time. The provision will then have no effect. A legislative provision otherwise effective and having meaning cannot be destroyed by judicial interpretation giving restricted C.R.P.NO.2012/01 :: 41 ::
meaning to any word in that provision which is expressly indicated as to be interpreted.
51. Judicial pronouncements is not capable of having the effect of legislations. It cannot equally delegislate. It can only declare a provision ultra vires upon specific challenge based on constitutionality. It is altogether different from an interpretation resulting in delegislating a provision or deleting a provision from statute book on judicial pronouncement. The provision in Section 11(17) is in no way transgressing the limits of legislative sphere. In the words of Lord Sankey L.C., quoting Issacs, J. "unless it becomes clear beyond reasonable doubt that the legislation in question transgresses the limits laid down by the organic law of the Constitution it must be allowed to stand as the true expression of the national will {See Shell Co. of Australia v. Federal Commr. of Taxation {1931 AC 275}. As observed by Francis Bennion in his Statutory Interpretation, C.R.P.NO.2012/01 :: 42 ::
"An Act must be construed so that its provisions are given force and effect rather than being rendered nugatory."
52. Therefore, rather than annihilating the provision which expresses the will of the legislature, it must be allowed to stand, giving the word 'tenant' the meaning that has been ascribed to it by the legislature itself. Normally the legislature is the best judge of what is good for the community, but the court should not shirk its duty to determine the validity of the law {Municipal Corpn. of the City of Ahmedabad v. Jan Mohd. Usmanbhai {(1986) 3 SCC 20 - AIR 1986 SC 1205} and {Dalmia Cement (Bharat) Ltd. v. Union of India (1996) 10 SCC 104}. It is to be remembered here, that there is no challenge as to the validity of the provision under examination.
53. "Legislature understands and correctly appreciates the needs of its own people, its laws are directed to problems made manifest by experience, and its discriminations are based on adequate grounds. The presumption of constitutionality is indeed so strong that in C.R.P.NO.2012/01 :: 43 ::
order to sustain it, the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation".
54. That is why similar provision contained in the preceding statute is again continued in the present one. Certainly then, it can only be with a purposive approach of protecting the 'tenant' (as defined) in occupation of the building continuously since 1.4.1940, with no room for any contextual restriction as contained in Section 11(11)(i) as discussed above, but in similar sense as in Section 11(12) where another similar benefit or privilege is dealt with.
55. There is also no situation for reading down the provision as legislature has clearly indicated the meaning of the word tenant and as no other meaning arise from the context of Section 11(17). As held in Minerva Mills Ltd. v. Union of India {1980 (3) S.C.C. 625}:
"The device of reading down is not to be resorted in order to save the susceptibilities of the lawmakers, nor indeed to C.R.P.NO.2012/01 :: 44 ::
imagine a law of one's liking to have been passed. One must at least take the Parliament at its word ... If the Parliament has manifested a clear intention to exercise an unlimited power, it is impermissible to read down the amplitude of that power so as to make it limited. The principle of reading down cannot be invoked or applied in opposition to the clear intention of the legislature."
56. As held in Sanjaykumar v. Narinder Verma {2006 (6) S.C.C. 467}:
"There being no substantive challenge to the Rules, there was no question of striking down the Rules, nor was there any situation of reading down the Rules."
57. Moreover, reading down is not permissible in such a manner as would fly in the face of the express terms of the statutory provisions {See Gautam v. Union of India {1993 (1) S.C.C. 78}.
58. In the grab of "reading down", however, it is not open to read words and expressions not found in the statute and thus venture into a kind of judicial legislation, {see Calcutta Gujarati Education Society v. Calcultta Municipal Corporation {2003(10) S.C.C. 533}. But that C.R.P.NO.2012/01 :: 45 ::
was what has been , in effect, done in Narayanan's case. As further held by the Supreme Court in that case:
"The rule of reading down is to be used for the limited purpose of making a particular provision workable and to bring it in harmony with other provisions of the statute."
Really, there is no unworkability for Section 11(17) and it is not in any way disharmonious with similar provisions in the Act, as already discussed.
59. Legislations like the Act have to be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion etc. The legislature should be allowed some play in the joints, because it has to deal with complex problems which do not admit of solution through any doctrinaire or strait-jacket formula and this is particularly true in the case of legislation dealing with eviction and rent control matters, where, having regard to the nature of the problems required to be dealt with, greater play in the joints has to be allowed to the legislature. "The court should feel more inclined to give judicial deference to legislative judgment in such field C.R.P.NO.2012/01 :: 46 ::
than in other areas where fundamental human rights are involved".
60. The Court must therefore adjudge by the generality of its provisions and not by inequities or by the possibilities of abuse of any of its provisions. Because, if any inequities or possibilities of abuse come to light, the legislature can always step in and enact suitable amendatory legislation It would be within the exclusive domain of the judiciary to expound the law as it is and not to speculate what it should be as it is the function of the legislature.
61. The meaning of a word or expression used in a statute often is coloured by the context in which it occurs. It is the duty of the Court to determine in what particular meaning and particular shade of meaning the word or expression was used by the law-makers. In discharging that duty the Court will take into account the context in which it occurs, the object to serve which it was used, its collocation, the general congruity with the concept or object it was intended to C.R.P.NO.2012/01 :: 47 ::
articulate and a host of other considerations. Bearing this in view, when one approaches the word 'tenant' used in Section 11(17) in comparison with the context in which that word is used in different provisions including 11(11)(i) and 11(12) with variations in its meaning as already discussed, it does not admit a different shade of meaning to that expressly indicated in the interpretative provision Section 2(6).
62. The primary function of the courts is to interpret and apply the laws according to the will of those who made them and not to transgress into the legislative domain of policy-making. The job of a Judge is judging and not law- making. In Lord Devlin's words, "Judges are the keepers of the law and the keepers of these boundaries cannot, also, be among outriders". A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases. But ironing out shall not result in burning out the fabric of the statute. And that is the effect of the interpretation given in Narayanan's case. C.R.P.NO.2012/01
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63. The benefit conferred on a tenant in terms of Section 11(17) when available to heirs of the person with whom the contract of tenancy commenced, it will not constitute a permanent tenancy. Eviction can be sought for against such a tenant on any of the grounds other than that under Section 11(3), unqualifiedly, proving existence of such grounds. Even under Section 11(3) eviction of a tenant since 1.4.1940 is permissible, if it is shown that the tenant did not occupy the premises continuously since then, subject to the explanation to Section 11(17). So, the tenancy with a tenant entitled to the benefit of Section 11(17) cannot be termed as a permanent tenancy when that benefit is available to the heir/heirs of a deceased tenant.
64. Even otherwise, no building tenant in a notified area can be evicted at all unless any of the grounds statutorily recognised as per the Act is available. And the tenants in such cases will continue indefinitely until they voluntarily surrender the premises. Can such tenancy be C.R.P.NO.2012/01 :: 49 ::
termed as permanent tenancy? Answer is in emphatic negative. Same is the situation in case of application of Section 11(17) to a 'tenant' who includes the heir/heirs of a deceased tenant.
65. Even in spite of the protection ensured to a tenant in Section 11(17), the landlord can even seek for revision of rent by initiating appropriate proceedings. Landlord also cannot have grievance that he may have to continue the lease on the same rate of rent fixed years ago. A tenant is always, thus, a tenant and there is no statutory metamorphosis by reason of the said provision. This is yet another facet which demonstrates that the provision does not result in permanent tenancy or in virtual conferment of ownership.
66. The scheme of Section 11 of the Act indicates that right of the landlord to get eviction on different grounds is always restricted. On deposit of arrears of rent, an order of eviction can be vacated. When sub tenant is sent away, on C.R.P.NO.2012/01 :: 50 ::
receipt of notice from landlord, such ground for eviction vanishes. After reconstruction, space in the new building can be opted to by the evicted tenant. For eviction on several grounds as under sub-section (3), (4), (7) and (8) of Section 11, as specified in Section 11(10), the claim of the landlord shall be bona fide. Even a landlord cannot urge the ground of bona fide need under Section 11(3) merely as a ruse for eviction. On eviction, he has to demonstrate his bona fide need by occupying the premises for that need within a month of getting delivery of the building from which the tenant was evicted. A mere occupation is not sufficient. It should be for at least a period of six months; unless some sufficient reason is shown. Otherwise, the evicted tenant can seek re- possession. The provisos to Sub-section (3) are further fetters to seek eviction on the ground of bona fide need. These are also several of the restrictions on the right to get eviction even under Section 11(3). Thus, the restriction on the right of the landlord to get the tenant evicted is pervading C.R.P.NO.2012/01 :: 51 ::
all over Section 11. Sub-Section (17) is manifestation of yet another restriction on eviction of a particular class of tenants.
67. The constitution bench of the Supreme Court in Gian Devi v. Jeevan Kumar {AIR 1985 S.C. 796} considered a similar aspect. The point considered there was as follows:
"The correctness of this view that on death of a tenant whose tenancy in respect of any commercial premises has been terminated during his lifetime, whether before the commencement of any eviction proceeding against him or during the pendency of any eviction proceeding against him, the heirs of the deceased tenant do not enjoy the protection afforded by the Act to the tenant and they do not have any right to continue to remain in possession because they do not inherit the tenancy rights of the deceased tenant, is challenged in this appeal."
It was held that the interest or estate which a tenant has under the Act, despite the termination of contractual tenancy creates a heritable interest. The Supreme Court made it clear that:
"The termination of the contractual tenancy in view of the definition of tenant in the act does not bring about any change in the status and legal position of the tenant, unless C.R.P.NO.2012/01 :: 52 ::
there are contrary provisions in the Act; and, the tenant notwithstanding the termination of tenancy does enjoy an estate or interest in the tenanted premises. This interest or estate which the tenant under the act despite termination of the contractual tenancy continues to enjoy creates a heritable interest in the absence of any provision to the contrary."
Noting the definition of 'tenant' in the Act considered by the Supreme Court that tenant includes any person continuing in possession, it was further held that in the absence of provision to that effect:
"the heritable interest of the heirs of the statutory tenant would devolve on all the heirs of the 'so called statutory tenant' on his death and the heirs of such tenant would in law step into his position.", and that the heirs of tenants become entitled:
"to inherit the status and position of the statutory tenant on his death".
The Supreme Court further held that:
"The heirs of the deceased tenant in the absence of any provision in the Rent Act to the contrary will step into the position of the deceased tenant and all the rights and obligations of the deceased tenant including the protection afforded to the deceased tenant under the Act will devolve on C.R.P.NO.2012/01 :: 53 ::
the heirs of the deceased tenant."
There is specific and express inclusion of heirs in Kerala Act and there is no contra indication in Section 11(17) to hold otherwise.
68. In the light of this, to borrow the words of Supreme Court in Damadilal v. Parashram {AIR 1976 SC 2229}:
"We find it difficult to appreciate how in this country we can proceed on the basis that a tenant whose contractual tenancy has determined but who is protected against eviction by the statute, has no right of property but only a personal right to remain in occupation."
69. Above all, the benefit or protection available under Section 11(17) is for a tenant who has been in continuous occupation of a building from 1st April, 1940 as a tenant. Let the provision be read in full once again:
'Notwithstanding anything contained in this section a tenant who has been in continuous occupation of a building from 1st April 1940 'as a tenant' shall not be liable to be evicted for bona fide occupation of the landlord or of the occupation by any member of his family dependent on him, provided that a landlord of a C.R.P.NO.2012/01 :: 54 ::
residential building shall be entitled to evict such a tenant of that building if the landlord has been living in a place outside the city, town or village in which the building is situated for a period of not less than five years before he makes an application to the Rent Control Court for being put in possession of the building and requires the building, bona fide for his own permanent residence or for the permanent residence of any member of his family or the landlord is in dire need of a place for residence and has none of his own." {emphasis supplied} Even if the words emphasised are omitted from the provision, it will have the meaning that "a tenant in continuous occupation from 1.4.1940 shall not be liable to be evicted'. Then, what is the purpose of the words 'as a tenant' specifically used in the section in the sense that a tenant in occupation as a tenant. Necessarily, it should add to the meaning and sense otherwise obtained. It is more than a tenant in occupation. That repeated usage of word 'tenant' that: a tenant who has been in continuous occupation of a building from 1st April 1940 ' as a tenant', in that provision, indicates that the continued occupant shall also be 'as a tenant', as meant by the definition clause. That is the only C.R.P.NO.2012/01 :: 55 ::
import that can be gathered by the usage of the phrase 'as a tenant'. The provision cannot have the same meaning with and without that phrase. Therefore, the phrase 'as a tenant' appearing has to be taken as emphasis for the status of the occupant viz., as a tenant as defined. There, the legislature did not use any further qualification to indicate that it is the person who was originally inducted.
70. Therefore, on any look, - whether based on the definition of the term 'tenant', based on inheritance, based on legislative intention gatherable even from the preceding statute, based on comparison of the term used in similar provisions conferring benefits to tenants, based on creation of special interest in favour of a class of tenants with continued occupation from a particular date, based on the trend of the statute imposing different types of restrictions on the right of eviction available to the landlord, based on the generality of the provision of the Act, based on the purpose behind usage of the words 'as a tenant' in the provision under examination C.R.P.NO.2012/01 :: 56 ::
etc., the word 'tenant' appearing in Section 11(17), shall necessarily be ascribed the same meaning as contained in the definition in Section 2(6). Consequently, the heir or heirs of a deceased tenant also will come within the protective umbrella of Section 11(17) on proof of continued occupation from 1.4.1940 of their predecessor followed by that of their.
71. The point referred is answered accordingly.
Sd/-
(K.A. ABDUL GAFOOR) JUDGE Kurian Joseph, J.(Concurring with K.Padmanabhan Nair, J.)
72. Whether the expression 'tenant' as appearing under Section 11(17) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act')requires attribution of a contextual meaning different from the normal meaning as defined in Section 2(6) of the Act is the crucial issue. The Full Bench decision of this Court in Narayanan v. Shalima (2003(2) KLT 317) held that the protection conferred on a tenant under Section 11(17) of the Act against eviction on the ground of bona fide need of the landlord, is a personal C.R.P.NO.2012/01 :: 57 ::
privilege which lapses with the death of the original tenant. The said decision has been doubted by a Division Bench and hence this reference. I had the benefit of going through the illuminative judgment of my learned brother Padmanabhan Nair(J). I fully agree with the view of my learned brother that the Full Bench decision in Narayanan's case does not require reconsideration. However, I feel that a little more flavour could be added so as to sharpen the analysis.
73. At the outset, it is to be borne in mind that the Act provides for, permits and requires the definitions to be given contextual meaning. The sub-section 2(6) dealing with 'tenant' is not to be truncated and read. It should be read from the opening words. The provision to the extent relevant reads as follows :-
2.Definitions:--In this Act, unless the context otherwise requires,--
-x x x x x x x x x x x x-
-x x x x x x x x x xx x x-
[(6) "tenant" means any person by whom or on whose account rent is payable for a building and includes:--
(i) the heir or heirs of a deceased tenant, and C.R.P.NO.2012/01 :: 58 ::
(ii) a person continuing in possession after the termination of the tenancy in his favour, but does not include a Kudikidappukaran as defined in the Kerala Land Reforms Act, 1963 (Kerala Act 1 f 1964), or a person placed in occupation of a building by its tenant, or a person to whom the collection of rents or fees in a public market, cart-stand or slaughter house or of rents for shops has been farmed out or leased by a Municipal Council, Municipal Corporation, Township Committee or Panchayat;] Section 11 dealing with eviction of tenants has prescribed the various safeguards against unreasonable eviction. Section 11 (3), subject to the conditions therein permits eviction for the bona fide need of the landlord. It reads as follows :-
11.Eviction of tenants:--
-x x x x x x x x x x-
-x x x x x x x x x x-
(3) 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:
Provided that the Rent Control Court shall not give any such direction if the landlord has another 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:
Provided further that the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on C.R.P.NO.2012/01 :: 59 ::
such trade or business:
Provided further that no landlord whose right to recover possession arises under an instrument of transfer inter vivos shall be entitled to apply to be put in possession until the expiry of one year from the date of the instrument:
Provided further that if a landlord after obtaining an order to be put in possession transfers his rights in respect of the building to another person, the transferee shall not be entitled to be put in possession unless he proves that he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him.
However, Section 11(17) further provides that a tenant, who has been in continuous occupation of a non-residential premises from 1.4.1940 cannot be evicted for the bona fide need of the landlord. The provision reads as follows :-
11.(17) Notwithstanding anything contained in this section a tenant who has been in continuous occupation of a bu ilding from 1st Ap ril 1940 as a tenant, shall not be liable to be evicted for bona fide occupation of the landlord or of the occupation by any member of his family dependent on him, provided that a landlord of a residential building shall be entitled to evict such a tenant of that building if the landlord has been living in a place outside the city, town or village in which the building is situated for a period of not less than five years before he makes an application to the Rent Control Court for being put in possession of the building, and requires the building bona fide for his own permanent residence or for the permanent residence of any member of his family or the landlord is in dire need of a place for residence and has none of his own.
Whether the tenancy referred to above in Section 11(17) would continue eternally through his heirs is the question. C.R.P.NO.2012/01
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74. The Rent Control Act no doubt is a social welfare legislation intended to protect and safeguard the interests of the tenants. It is "an Act to regulate the lease of buildings and to control the rent of the buildings in the State of Kerala." As held by the Supreme Court in Ouseph Mathai v. M.Abdul Khadir (AIR 2002 SC 110), the Act does not confer unfettered powers on the tenants to remain in possession of the leased premises for ever. In the statement of objects and reasons, the purpose of the Act as originally introduced in 1959 are; (1) regulation of the letting of buildings, (2) prevention of unreasonable eviction of tenants from buildings and (3) the control of rent in respect of the leased premises. While analysing the contextual meaning of a provision, the legislative intent is certainly a crucially relevant factor. The Act is not intended to make the tenant lord of the land, as was done in the case of the revolutionary legislation-the Kerala Land Reforms Act, or deprive ownership as in the case of Kerala Private Forests (Vesting and Assignment) Act. It is not intended to give any fixity of tenure. It is intended only to C.R.P.NO.2012/01 :: 61 ::
prevent unreasonable eviction of the tenants. The Act is also not intended to give the tenant any vested right not to be ever evicted and to continue eternally in occupation. The intention is only to place some restrictions on the unfettered right of the landlord under the common law to evict his tenants at will. The Act does not contemplate any immunity to the tenants from eviction.
75. Section 11(3) of the Act permits the landlord to initiate proceedings for eviction on the ground of bona fide need, subject to the enumerated further restrictions as per the provisos under the sub-section. However, Section 11(17), despite the provisos, imposes a fetter for ever on eviction for bona fide use. In the instant case, we are concerned with the lease of a non-residential premises. Literally, Section 11(17) would mean that a tenant in continuous occupation of the premises from 1.4.1940 as a tenant, cannot be evicted for bona fide occupation of the landlord or of the occupation of any member of the family dependent on him. Since Section 11 (3) provides for eviction on the ground of bona fide need, the C.R.P.NO.2012/01 :: 62 ::
fetter as introduced in Section 11(17) is thus an exception to Section 11(3). The simple question is whether such exception to Section 11(3) as provided under Section 11(17) giving immunity from eviction is available to the heirs of a tenant who is in continuous occupation of the building from 1.4.1940. If the plain meaning of Section 2(6) is followed, the tenant has to mean the heirs also. But it has to be noted that Section 2 itself starts with the guarded provision-"unless the context otherwise requires". Whether the context of Section 11(17) requires interpretation of the expression tenant to be restricted as a personal privilege on the particular tenant in continuous occupation from 1.4.1940 is the question.
76. Once a tenant, always a tenant and for ever, is not the concept sought to be introduced under the Act. The Act is intended only to prevent the mischief of unreasonable eviction meaning thereby that a tenant is liable to be evicted only in accordance with the provisions and procedure under the Act. If the literal meaning of the word 'tenant' as defined under Section 2(6) of the Act is taken, there is no question of C.R.P.NO.2012/01 :: 63 ::
any eviction of a tenant in occupation of non-residential premises as a tenant continuously from 1.4.1940 for the bona fide need of the landlord since there is no limit as such, on the succession of heirs of the tenant. An Act intended to give protection to a tenant from unreasonable eviction cannot comprehend imposition of an unreasonable fetter for ever on a landlord from even thinking of eviction on the ground of bona fide need. That will be repugnant to the purpose of the Act. Restriction on the right to evict and not extinction of the right to evict is the purpose. Perpetuity of tenancy is not the intention of the legislature while enacting a law on regulation of the lease and prevention of unreasonable eviction. Regulation of the lease and not regularisation is the intention of the legislature. Protection from unreasonable eviction is the purpose and not eternal protection of the lease. The court has always a duty to strike a balance in such conflicting situations by attributing a just and fair meaning to the context. It is thus the duty of the court to find out the contextual meaning of the expression 'tenant' as appearing under Section 11(17) C.R.P.NO.2012/01 :: 64 ::
of the Act. Since Section 11(17) is an exception to Section 11 (3) dealing with eviction on the ground of bona fide need of the landlord, deprivation of that right of the landlord has only to be limited to the particular person in continuous occupation of the tenanted non-residential premises as a tenant from
1..4..1940. It is a personal privilege granted to the particular tenant which cannot be inherited by the heirs. It is not intended to provide an immunity to the heirs of the tenant in eternity from eviction, extinguishing the legitimate hopes of the landlord to have the premises for his bona fide need.
77. My wisdom, on the reasoning referred to above, is mainly gathered from the literature on Principles of Statutory Interpretation by Justice G.P.Singh (Eighth Edition) and also a few celebrated decisions. According to the learned author, "Reference to the Statement of Objects and Reasons is permissible for understanding the background, antecedent state of affairs, the surrounding circumstances in relation to the statute, and the evil which the statute sought to remedy". As already stated above, when the common law permitted the C.R.P.NO.2012/01 :: 65 ::
landlords to evict the tenants at their sweet will, the legislature thought of granting protection only from the unreasonable eviction, and not perpetuity of tenancy. Even without reference to the statement of objects and reasons also, courts may have to make such an attempt to gather the contextual meaning. To refer to one of the earliest decisions on this point, of the Privy Council and to quote Sir George Rankin (ILM Cadija Umma v. S.Don Manis Appu, AIR 1939 PC 63 p.65), "A phrase having been introduced and then defined the definition prima facie must entirely determine the application of the phrase; but the definition must itself be interpreted before it is applied, and interpreted, in case of doubt in a sense appropriate to the phrase defined and to the general purpose of the enactment".
In a given situation where the definition of an expression itself is creating difficulty in giving effect to the purpose of legislation, the expression will have to be interpreted having regard to the purpose of the Act. In other words, a definition is not to be read in isolation. In the instant case, however, the definition clause itself provides that the expression should be understood and applied having regard to the context in which C.R.P.NO.2012/01 :: 66 ::
the expression 'tenant' appears. Under Section 11(17), the context relevant to the case is that of a tenant in continuous occupation of the non-residential premises from 1.4.1940 facing the threat of eviction on the ground of the most valuable right of the landlord, viz., bona fide own need. To such a valuable right only, a temporary check by way of exemption is given, a life interest, taking note of the occupation of a particular person as a tenant for a long time and a specified date is given as 1.4.1940. Despite my strenuous effort as to the relevance of that date, I confess, I was not able to gather any significance of that date, even from the debates in the Assembly. Be that as it may, it would only mean a long, un-interrupted occupation of a non-residential premises by a person as a tenant. Though ordinarily a tenant is liable to be evicted for the bona fide need of the landlord, in the case of the particular person in continuous occupation of a premises as a tenant from 1.4.1940, an exception is provided, protection from eviction till the end of his life. That is only a personal privilege to the person and not to his heirs, lest it C.R.P.NO.2012/01 :: 67 ::
should lead to perpetuity of tenancy, which would be repugnant to the purpose of the legislation.
78. The contention of the revision petitioner is that the court should not usurp on the legislative function under the guise of interpretation. The Judges are not expected to interpret statutes in the light of their views on policy matters. What is expedient, what is just and what is morally justifiable etc. are for the legislature to decide. I have no quarrel with the well settled position. But that does not mean that Judges should not say what the law is having regard to the purpose for which the statute is enacted. That is not judicial legislation, it is judicial function. While it is to the legislature to decide what the law should be; it is for the Court to say what the law means. To quote Justice G.P.Singh, "The Courts are warned that they are not entitled to usurp legislative function under the disguise of interpretation and that they must avoid the danger of an apriori determination of the meaning of a provision based on their own preconceived notions of ideological structure or scheme into which the provision to be interpreted is somehow fitted. Caution is all the more necessary in dealing with the legislation enacted to give effect to policies that are subject of bitter public and parliamentary C.R.P.NO.2012/01 :: 68 ::
controversy for in controversial matters there is room for differences of opinion as to what is expedient, what is just and what is morally justifiable; it is the Parliament's opinion in these matters that is paramount. This only means that Judges cannot interpret statutes in the light of their views as to policy; but they can adopt a purposive interpretation if they can find in the statute read as a whole or in the material to which they are permitted by law to refer as aids to interpretation an expression of Parliament's purpose or policy. So there is no usurpation of function or danger when the purpose or object of a statute is derived from legitimate sources and the words are given an interpretation which they can reasonably bear to effectuate that purpose or object." (emphasis supplied)(Chapter I page 17) A mechanical interpretation of the words without bearing in mind the object of the legislation will defeat the purpose of the legislation. In the words of Krishna Iyer, J., in Chairman, Board of Mining Examination and Chief Inspector of Mines v. Ramjee (AIR 1977 SC 965), "to be literal in meaning is to see the skin and miss the soul. The judicial key to construction is the composite perception of the deha and the dehi of the provision."
To quote Chinnappa Reddy, J. in Reserve Bank of India v. Pearless General Finance and Investment Co. (AIR 1987 C.R.P.NO.2012/01 :: 69 ::
SC 1023), "Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted"(emphasis supplied). At the risk of redundancy, I may state that the statute was enacted only to suppress and prevent the mischief of unreasonble eviction and not to give permanency of tenancy. In the matter of intention of the legislature, according to Justice G.P.Singh, the words used by the legislature do not always bear plain meaning and even on the plain meaning itself, there could be doubts. That is precisely the situation in the instant case. In such situations of doubt, it is always safe to have an eye on the object and purpose of the statute, or the reason of spirit behind it.
"
Th e intention of the Legislature thus assimilates two aspects: In one aspect it carries the concept of 'meaning', i.e., what the words mean and in another aspect, it conveys the concept of 'purpose and object' or the 'reason and spirit' pervading through the statute. The process of construction, therefore, C.R.P.NO.2012/01 :: 70 ::
combines both literal and purposive approaches. In other words the legislative intention i.e., the true or legal meaning of an enactment is derived by considering the meaning of the words used in the enactment in the light of any discernible purpose or object which comprehends the mischief and its remedy to which the enactment is directed."(Chapter I, page 10)
-x x x x x x -
"
B ut words used by the Legislature do not always bear a plain meaning. Moreover, judges quite often differ on the issue whether certain words are plain and even when there is an agreement that the words are plain, difference of opinion may result on the question as to what the plain meaning is. In case of doubt, therefore, it is always safe to have an eye on the object and purpose of the statute, or reason and spirit behind it. "I say that we must look to what the purpose is", was said by LORD CAIRNS; and it was observed by SIR JOHN NICHOLL that "the key to the opening of every law is the reason and the spirit of the law". This aspect of 'purpose' is the very foundation of the rule in Heydon's case reported by LORD COKE as far back as 1584.
Statutes "should be construed not as theorems of Euclid", said JUDGE LEARNED HAND, "but with some imagination of the purposes which lie behind them." "Each word, phrase or sentence" observed MUKHERJEA J. "is to be construed in the light of general purpose of the Act itself". In the words of K.Iyer, J. the interpretative effort "must be illumined by the goal though guided by the word". (Chapter I, Page 12)
79. It is not always safe to adopt the plain meaning C.R.P.NO.2012/01 :: 71 ::
of the words in a statute stating that it was the wisdom of the legislature. As the learned author says, some times, the legislature itself, if consulted would say that they did not even comprehend such a situation. To quote "In all real controversies of construction if it were open to consult the Legislature as to its intention, the answer of most of the legislators in all probability will be: 'such a problem never occurred to us, solve it as best as you can, consistent with the words used, and the purpose indicated by us in the statute'".
80. Thus viewed from any angle, it is crystal clear that the special privilege granted to a person in continuous occupation of a non-residential premises as a tenant ever since 1.4.1940 is a personal privilege, not intended to be inherited by his heirs, since the context otherwise requires the expression to be read and interpreted so.
Sd/-
KURIAN JOSEPH, JUDGE.
Balakrishnan Nair, J.(Dissenting with K.Padmanabhan Nair, J.)
81. I had the benefit of reading the judgment in draft of my C.R.P.NO.2012/01 :: 72 ::
learned brother K.Padmanabhan Nair, J., who was requested to author the main judgment on behalf of the Larger Bench. I consider it a misfortune that I cannot agree with the conclusions of my learned and noble brother. So, I am constrained to render this separate judgment. The facts of the case and also the legal questions involved have been elaborately stated by my learned brother in his judgment. Therefore, it is unnecessary for me to re-state them. So, I straightaway proceed to consider the point in controversy. The point that arises for decision, though it is couched in a slightly different form in the reference order, is, essentially whether the finding of the Full Bench of this Court in Narayanan v. Shalima (2003(2) KLT 317 FB) that the protection conferred on a tenant under Section 11(17) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act') against eviction under Section 11(3) thereof, is a personal privilege which dies with the death of the original tenant, who has continuous occupation of the tenanted premises from 1.4.1940 and cannot be inherited by his heirs, is liable to be upheld.
82. The term "tenant" has been defined in Section 2(6) of C.R.P.NO.2012/01 :: 73 ::
the Act. The said definition reads as follows:
"(6) 'tenant' means any person by whom or on whose account rent is payable for a building and includes:--
(i) the heir or heirs of a deceased tenant, and
(ii) a person continuing in possession after the termination of the tenancy in his favour, but does not include a Kudikidappukaran as defined in the Kerala Land Reforms Act, 1963 (Kerala Act 1 of 1964), or a person placed in occupation of a building by its tenant, or a person to whom the collection of rents or fees in a public market, cart-stand or slaughter house or of rents for shops has been farmed out or leased by a Municipal Council, Municipal Corporation, Township Committee or Panchayat."
The Act came into force with effect from 1.4.1965. At that time the word "tenant" was defined in the following manner:
"'tenant' means any person by whom or on whose account rent is payable for a building and includes the surviving spouse, or any son or daughter, of a deceased tenant who had been living with the tenant in the building as a member of the tenant's family upto the death of the tenant and a person continuing in possession after the termination of the tenancy in his favour, but does not include a Kudikidappukaran as defined in the Kerala Land Refoms Act, 1963 (Kerala Act 1 of 1964), or a person placed in occupation of a building by its tenant or a person to whom the collection of rents or fees in a public market, cart-stand or slaughter-house or of rents for shops has been farmed out or leased by a municipal council or local board or Panchayat or Corporation."
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The above quoted old definition only recognized surviving spouse and children, who had been living with the tenant as members of his family up to his death, as tenants after the death of the original tenant. The said definition was substituted with the present definition by Act 7 of 1966 with effect from 20.7.1966. The new definition covers all heirs, irrespective of whether they are residing as members of the family with the tenant or not. For convenient reference Section 11(17) of the Act is quoted below:
"(17) Notwithstanding anything contained in this section a tenant who has been in continuous occupation of a building from 1st April 1940 as a tenant, shall not be liable to be evicted for bona fide occupation of the landlord or of the occupation by any member of his family dependent on him, provided that a landlord of a residential building shall be entitled to evict such a tenant of that building if the landlord has been living in a place outside the city, town or village in which the building is situated for a period of not less than five years before he makes an application to the Rent Control Court for being put in possession of the building, and requires the building bona fide for his own permanent residence or for the permanent residence of any member of his family or the landlord is in dire need of a place for residence and has none of his own.
Explanation:-- In computing the period of continuous occupation from 1st April, 1940, the period, if any, during which the landlord was residing outside the city, town or village in which the building is situated shall C.R.P.NO.2012/01 :: 75 ::
be excluded."
83. Section 11 deals with eviction of tenants. The various sub-sections of the said Section put fetters on the right of the landlord to evict tenants. Section 11(17) casts a very special type of disability on the landlord. A tenant mentioned under the sub-section cannot be evicted on the ground available under Section 11(3). Normally, the word "tenant" mentioned in Section 11(17) must include his heirs also, in view of the definition of "tenant" contained in Section 2(6). Of course, if the context otherwise requires, a meaning not given in the dictionary of the statute can be ascribed to the word "tenant". But, is there anything different in the context, in which the word "tenant" is used in Section 11(17), so as to discard the statutory meaning of that word? Going by the plain language of the said sub-section, I cannot find anything in the context, which compels one to attribute a different meaning to the word "tenant". When the words of the statute are plain and clear, the court should give effect to the literal meaning of the statute. That is the first and foremost rule of interpretation. Maxwell on Interpretation of Statutes (12th Edition, page 28), deals with the concept C.R.P.NO.2012/01 :: 76 ::
of literal construction in the following words:
"The first and most elementary rule of construction is that it is to be assumed that the words and phrases of technical legislation are used in their technical meaning if they have acquired one, and otherwise in their ordinary meaning, and the second is that the phrases and sentences are to be construed according to the rules of grammar. 'The length and detail of modern legislation,' wrote Lord Evershed M.R., 'has undoubtedly reinforced the claim of literal construction as the only safe rule.' If there is nothing to modify, alter or qualify the language which the statute contains, it must be construed in the ordinary and natural meaning of the words and sentences. 'The safer and more correct course of dealing with a question of construction is to take the words themselves and arrive if possible at their meaning without, in the first instance, reference to cases." (Emphasis supplied)
84. In Craies on Statute Law (7th Edition, page 65), it is stated that "Where the language of an Act is clear and explicit, we must give effect to it, whatever may be the consequences, for in that case the words of the statute speak the intention of the legislature."
85. The learned author Justice G.P. Singh in his book "Principles of Statutory Interpretation" (8th Edition, page 11-12) deals with the literal rule, which is a cardinal principle of construction in the following words:
"In all ordinary cases and primarily the language C.R.P.NO.2012/01 :: 77 ::
employed is the determining factor of intention. 'The first and primary rule of construction', said GAJENDRAGADKAR, J. 'is that the intention of the Legislature must be found in the words used by the Legislature itself.' The question is not what may be supposed to have been intended but what has been said. 'I do not care what their intention was,' said Mr. JUSTICE HOLMES in a letter: 'I only want to know what the words mean.' LORD BROUGHAM has more emphatically stated the importance of the text of the statute in the following words: 'If the Legislature did intend that which it has not expressed clearly; much more, if the Legislature intended something very different; if the Legislature intended pretty nearly the opposite of what is said, it is not for judges to invent something which they do not meet within the words of the text (aiding their construction of the text always, of course, by the context).' These and like opinions lay stress on one aspect of intention, i.e., what the words mean; and undoubtedly to the extent the 'referent' is clearly indicated and the words have a 'plain' meaning, the courts are not to busy themselves with 'supposed intention' or with 'the policy underlying the statute'." (Emphasis supplied)
86. Recently, the Hon'ble Supreme Court in Raghunath Rai Bareja v. Punjab National Bank (2006 AIR SCW 6446), while interpreting Section 31 of the Recovery of Debts Due to Banks and Financial Institutions Act, has marshalled the decisions on literal interpretation exhaustively and explained the said concept in the following words:
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"39. In M/s. Hiralal Ratanlal vs. STO, AIR 19173 SC 1034, this Court observed:
'In construing a statutory provision the first and foremost rule of construction is the literary construction. All that the Court has to see at the very outset is what does the provision say. If the provision is unambiguous and if from the provision the legislative intent is clear, the Court need not call into aid the other rules of construction of statutes. The other rules of construction are called into aid only when the legislative intent is not clear.'
40. It may be mentioned in this connection that the first and foremost principle of interpretation of a statute in every system of interpretation is the literal rule of interpretation. The other rules of interpretation e.g., the mischief rule, purposive interpretation etc., can only be resorted to when the plain words of a statute are ambiguous or lead to no intelligible results or if read literally would nullify the very object of the statute. Where the words of a statute are absolutely clear and unambiguous, recourse cannot be had to the principles of interpretation other than the literal rule, vide Swedish Match AB vs. Securities and Exchange Board India, AIR 2004 SC 4219. As held in Prakash Nath Khanna vs. C.I.T., 2004(9) SCC 686, the language employed in a statute is the determinative factor of the legislative intent. The legislature is presumed to have made no mistake. The presumption is that it intended to say what it has said. Assuming there is a defect or an omission in the words used by the legislature, the Court cannot correct or make up the deficiency, especially when a literal reading thereof produces an intelligible result, vide Delhi Financial Corporation vs. Rajiv Anand, 2004(11) SCC 625. Where the legislative intent is clear from the language, the Court should given effect to it, vide Government of Andhra Pradesh vs. Road Rollers Owners Welfare Association, C.R.P.NO.2012/01 :: 79 ::
2004(6) SCC 210, and the Court should not seek to amend the law in the garb of interpretation.
41. As stated by Justice Frankfurter of the U.S. Supreme Court (see 'Of Law & Men : Papers and Addresses of Felix Frankfurter') 'Even within their area of choice the courts are not at large. They are confined by the nature and scope of the judicial function in its particular exercise in the field of interpretation. They are under the constraints imposed by the judicial function in our democratic society. As a matter of verbal recognition certainly, no one will gainsay that the function in construing a statute is to ascertain the meaning of words used by the legislature. To go beyond it is to usurp a power which our democracy has lodged in its elected legislature. The great judges have constantly admonished their brethren of the need for discipline in observing the limitations. A judge must not rewrite a statute, neither to enlarge nor to contract it. Whatever temptations the statesmanship of policy-making might wisely suggest, construction must eschew interpolation and evisceration. He must not read in by way of creation. He must not read out except to avoid patent nonsense or internal contradiction.'
42. As observed by Lord Granworth in Grundy v. Pinniger, (1852)1 LJ Ch 405:
'To adhere as closely as possible to the literal meaning of the words used, is a cardinal rule from which if we depart we launch into a sea of difficulties which it is not easy to fathom.'
43. In other words, once we depart from the literal rule, then any number of interpretations can be put to a C.R.P.NO.2012/01 :: 80 ::
statutory provision, each Judge having a free play to put his own interpretation as he likes. This would be destructive of judicial discipline, and also the basic principle in a democracy that it is not for the Judge to legislate as that is the task of the elected representatives of the people. Even if the literal interpretation results in hardship or inconvenience, it has to be followed (see G.P.Singh's Principles of Statutory Interpretations, 9th Edn. Pp 45-49). Hence departure from the literal rule should only be done in very rare cases, and ordinarily there should be judicial restraint in this connection.
44. As the Privy Council observed (per Viscount Simonds, L.C.):
'Again and again, this Board has insisted that in construing enacted words we are not concerned with the policy involved or with the results, injurious or otherwise, which may follow from giving effect to the language used.' (see Emperor v. Benoarilal Sarma, AIR 1945 PC 48, pg.53)
45. As observed by this Court in CIT vs. Keshab Chandra Mandal, AIR 1950 SC 265:
'Hardship or inconvenience cannot alter the meaning of the language employed by the Legislature if such meaning is clear on the face of the statute.'
46. The rules of interpretation other than the literal rule would come into play only if there is any doubt with regard to the express language used or if the plain meaning would lead to an absurdity. Where the words are unequivocal, there is no scope for importing any rule of interpretation vide Pandian Chemicals Ltd. vs. C.I.T., 2003 (5) SCC 590.
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47. It is only where the provisions of a statute are ambiguous that the Court can depart from a literal or strict construction vide Nasiruddin vs. Sita Ram Agarwal, AIR 2003 SC 1543. Where the words of a statute are plain and unambiguous effect must be given to them vide Bhaiji vs. Sub-Divisional Officer, Thandla, 2003(1) SCC 692).
48. No doubt in some exceptional cases departure can be made from the literal rule of the interpretation, e.g., by adopting a purposive construction, Heydon's mischief rule, etc., but that should only be done in very exceptional cases. Ordinarily it is not proper for the Court to depart from the literal rule as that would really be amending the law in the garb of interpretation, which is not permissible, vide J.P.Bansal vs. State of Rajasthan & Anr., AIR 2003 SC 1405, State of Jharkhand & Anr. vs. Govind Singh, JT 2004(10) SC 349 etc. It is for the legislature to amend the law and not the Court, vide State of Jharkhand & Anr. vs. Govind Singh, JT 2004 (10) SC 349. In Jinia Keotin vs. K.S. Manjhi, 2003(1) SCC 730, this Court observed:
'The Court cannot legislate.......... under the garb of interpretation...."
Hence there should be judicial restraint in this connection, and the temptation to do judicial legislation should be eschewed by the Courts. In fact, judicial legislation is an oxymoron.
49. In Shiv Shakti Co-operative Housing Society vs. Swaraj Developers, AIR 2003 SC 2434, this Court observed:
'It is a well settled principle in law that the Court cannot read anything into a statutory provision which is C.R.P.NO.2012/01 :: 82 ::
plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent.'
50. In our opinion, Section 31 is plain and unambiguous and it clearly says that only those suits or proceedings pending before a Court shall stand transferred to the Tribunal which were pending on the date when the Tribunal was established.
51. The learned counsel for the respondent submitted that we have to see the legislative intent when we interpret Section 31. In our opinion, resort can be had to the legislative intent for the purpose of interpreting a provision of law when the language employed by the legislature is doubtful or ambiguous or leads to some absurdity. However, when the language is plain and explicit and does not admit of any doubt, the Court cannot by reference to an assumed legislative intent expand or alter the plain meaning of an expression employed by the legislature, vide Ombalika Das vs. Hulisa Shaw, 2002(4) SCC 539.
52. Where the language is clear, the intention of the legislature has to be gathered from the language used vide Grasim Industries Limited vs. Collector of Customs, 2002 (4) SCC 297 and Union of India vs. Hamsoli Devi, 2002 (7) SCC 273.
53. In Union of India and another vs. Hansoli Devi and others, 2002(7) SCC 273 (vide para 9), this Court observed:
'It is a cardinal principle of construction of a statute that when the language of the statute is plain and unambiguous, then the court must give effect to the words C.R.P.NO.2012/01 :: 83 ::
used in the statute and it would not be open to the courts to adopt a hypothetical construction on the grounds that such construction is more consistent with the alleged object and policy of the Act.'
54. The function of the Court is only to expound the law and not to legislate vide District Mining Officer vs. Tata Iron and Steel Company, 2002(7) SCC 358. If we accept the interpretation canvassed by the learned counsel for the respondent we will really be legislating because in the guise of interpretation we will be really amending Section 31.
55. In Gurudevdatta VKSSS Maryadit vs. State of Maharashtra, AIR 2001 SC 1980, this Court observed:
'It is a cardinal principle of interpretation of statute that the words of a statute must be understood in their natural, ordinary or popular sense and construed according to their grammatical meaning, unless such construction leads to some absurdity or unless there is something in the context or in the object of the statute to suggest to the contrary. The golden rule is that the words of a statute must prima facie be given their ordinary meaning. It is yet another rule of construction that when the words of the statute are clear, plain and unambiguous, then the Courts are bound to give effect to that meaning, irrespective of the consequences. It is said that the words themselves best declare the intention of the law-giver. The Courts are adhered to the principle that efforts should be made to give meaning to each and every word used by the legislature and it is not a sound principle of construction to brush aside words in a statute as being inapposite surpluses, if they can have a proper application in circumstances conceivable within the contemplation of the statute'.
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56. The same view has been taken by this Court in S. Mehta vs. State of Maharashtra, 2001(8) SCC 257 (vide para 34) and Patangrao Kaddam vs. Prithviraj Sajirao Yadav Deshmugh, AIR 2001 SC 1121.
57. The literal rule of interpretation really means that there should be no interpretation. In other words, we should read the statute as it is, without distorting or twisting its language.
58. We may mention here that the literal rule of interpretation is not only followed by Judges and lawyers, but it is also followed by the layman in his ordinary life.
To give an illustration, if a person says 'this is a pencil', then he means that it is a pencil; and it is not that when he says that the object is a pencil, he means that it is a horse, donkey or an elephant. In other words, the literal rule of interpretation simply means that we mean what we say and we say what we mean. If we do not follow the literal rule of interpretation, social life will become impossible, and we will not understand each other. If we say that a certain object is a book then we mean it is a book. If we say it is a book, but we mean it is a horse, table or an elephant, then we will not be able to communicate with each other. Life will become impossible. Hence, the meaning of the literal rule of interpretation is simply that we mean what we say and we say what we mean."(Emphasis supplied) In the light of the above principles, we may now attempt to understand the scope of Section 11(17). Going by the plain language of the said Section, on the conditions therein being satisfied, a landlord cannot evict his tenant who was in continuous occupation from 1.4.1940 and his C.R.P.NO.2012/01 :: 85 ::
heirs, under Section 11(3). This is the plain meaning of the provisions in Section 11(17). I feel that we need venture to go after some other intention of the legislature, if only the words of the statute are in any way ambiguous.
87. We may attribute a different meaning from the ordinary meaning, if the giving effect to the latter, results in absurdity. The said rule is called the golden rule. Maxwell in Interpretation of Statutes (12th Edition, page 43), explains the concept of golden rule in the following words:
"The so-called 'golden rule' is really a modification of the literal rule. It was stated in this way by Parke B.: 'It is a very useful rule, in the construction of a statute, to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature, to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified, so as to avoid such inconvenience, but no further.' 'If,' said Brett L.J., 'the inconvenience is not only great, but what I may call an absurd inconvenience, by reading an enactment in its ordinary sense, whereas if you read it in a manner in which it is capable, though not its ordinary sense, there would not be any inconvenience at all, there would be reason why you should not read it according to its ordinary grammatical meaning.'"
(Emphasis supplied) C.R.P.NO.2012/01 :: 86 ::
88. In 'Principles of Statutory Interpretation' by Justice G.P. Singh (8th Edition, page 74-75), the concept of golden rule is dealt with in the following manner:
"VISCOUNT SIMON, L.C., said : 'The golden rule is that the words of a statute must prima facie be given their ordinary meaning'. Natural and ordinary meaning of words should not be departed from 'unless it can be shown that the legal context in which the words are used requires a different meaning'. Such a meaning cannot be departed from by the judges 'in the light of their own views as to policy' although they can 'adopt a purposive interpretation if they can find in the statute read as a whole or in material to which they are permitted by law to refer as aids to interpretation an expression of Parliament's purpose or policy'. For a modern statement of the rule one may refer to the speech of LORD SIMON OF GLAISDALE in a recent case where he said: 'Parliament is prima facie to be credited with meaning what is said in an Act of Parliament. The drafting of statutes, so important to a people who hope to live under the rule of law, will never be satisfactory unless courts seek whenever possible to apply 'the golden rule' of construction, that is to read the statutory language, grammatically and terminologically, in the ordinary and primary sense which it bears in its context, without omission or addition. Of course, Parliament is to be credited with good sense; so that when such an approach produces injustice, absurdity, contradiction or stultification of statutory objective the language may be modified sufficiently to avoid such disadvantage, though no further".
89. Whether giving effect to the plain meaning will result in C.R.P.NO.2012/01 :: 87 ::
gross absurdity or repugnance, is to be ascertained with reference to the words employed in the statute. I feel that such a contention cannot be advanced or accepted, having regard to the scheme of the present statute. The denial of right to a landlord for eviction, on a particular ground, of a tenant having certain special attributes can, in no way, be said to be generating absurd results. The State legislature has given birth to several legislations, from Land Reforms Act to Private Forests (Vesting and Assignment) Act, impinging upon the right to property. Many have been deprived of their rights over lands and many with limited title over them were made owners of the property. These are matters, which come within the competence of the State legislature. The "rights in or over land, including the relation between the landlord and the tenant" come under item 18 of List II of the seventh schedule of the Constitution of India. "Transfer of property other than agricultural land"
comes under entry 6 of List III. When a legislature is legislating on a subject, it need not confine to a particular legislative entry. It can fall back on all the entries, enabling it to legislate. In other words, one legislation need not be a watertight compartment containing provisions C.R.P.NO.2012/01 :: 88 ::
only on one subject. So, if the legislature, while legislating on rent control and eviction, grants limited immunity from eviction, of a permanent nature, the same cannot be described as without competence. See the relevant portion of Section 106 of the Kerala Land Reforms Act, which reads as follows:
"106. Special provisions relating to leases for commercial or industrial purposes.--(1) Notwithstanding anything contained in this Act, or in any other law, or in any contract, or in any order or decree of court, where on any land leased for commercial or industrial purpose, the lessee has constructed buildings for such commercial or industrial purpose before the 20th May, 1967, he shall not be liable to be evicted from such land, but shall be liable to pay rent under the contract of tenancy, and such rent shall be liable to be varied every twelve years.
Explanation.--For the purposes of this section,--
(a) 'lessee' includes a legal representative or an assignee of the lessee; and
(b) 'building' means a permanent or a temporary building and includes a shed.
(1A) The lessor or the lessee may apply to such authority as may be prescribed for varying the rent referred to in sub-section (1), and thereupon such authority may, after taking into consideration such matters as may be prescribed and after giving the lessor and the lessee an opportunity of being heard, pass such orders on the application as it deems fit."
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By the above provision, a tenant of commercial premises, whose case should come under the Rent Control legislation, has been dealt with under the Land Reforms legislation and given protection from eviction. No one has a case that Section 11(17) is unconstitutional. Therefore, it is unnecessary for this Court to read down the said provision, to save it from the alleged unconstitutionality.
90. The manifest reason for condemnation of Section 11 (17) is that it creates a perpetual tenancy, so far as non-residential buildings are concerned. So, it runs counter to the avowed object and policy of the Act, which is protection from unreasonable eviction, according to the landlord. So, the interpretation sought to be placed by the petitioner on the word "tenant" in the said Section is repugnant to the object of the legislation, it is pointed out. But, there is another provision in the Act, which creates, practically, perpetual tenancy. See Section 11(11), which reads as follows:
"(11) Notwithstanding anything contained in sub-
sections (1) to (10), no order for eviction or for putting the landlord in possession, shall be passed:--
(i) .............................................................
(ii) in respect of any building which has been let for C.R.P.NO.2012/01 :: 90 ::
use as an educational institution, and is actually being used as such, provided that the institution has been recognised by the Government or any authority empowered by them in this behalf, so long as such recognition continues." A building, even if it is let out recently for use as an educational institution, which has recognition from the competent authority, can never be evicted, as long as the user of the building is not changed and the recognition remains in force. In the case of a non-residential building covered by Section 11(17), the landlord can hope to evict the heir, who is not in "occupation", that is, who is not physically present. Heirs in "possession" but not in "occupation" will not get the protection of Section 11(17). But, Section 11(11)(ii) creates, practically, absolute fetter on the right of the landlord for eviction. For that reason, can the words of that provision be read down to mean that the protection available under that provision will die with the original tenant? In my humble view, the answer can only be an emphatic 'no'. If such protection can be granted to a tenant - School, why not grant it to a tenant/his heir, who was in long occupation of a non-residential building. I find no convincing reason to deny the protection sought.
91. While interpreting a statute, this Court may not venture C.R.P.NO.2012/01 :: 91 ::
to legislate. It is not authorized by the Constitution to amend or modify a statute according to its notions of fairness and justice. Even if, by giving effect to the plain meaning of a statute, unjust results are generated, it is for the legislature to take care of the same and not the courts. Courts are answerable only to law and God. They are not answerable to the public or to the legislature. So, this Court will be doing violence to the constitutional limitations, if it starts legislating. Ours is a Government of the people and not of the courts. It is for the legislature to say what should be the law. The court is normally called upon to say what was the law in a past transaction. It is true, it is for the courts to say what the law means, but they have to say it 'according to rules of reason and justice' and 'not according to private opinion'. If, in a litigation between two parties, this Court is going to amend a legislation, the people will lose their right to self determination, as to what laws should govern them. Abraham Lincoln in his first inaugural speech said:
"The candid citizen must confess that if the policy of the Government upon vital questions is to be irrevocably fixed by decisions of Supreme Court, the instant they are made in ordinary litigations between parties in personal actions, the people will have ceased to be their own rulers, having to that extent, practically C.R.P.NO.2012/01 :: 92 ::
resigned their own Government into the hands of that eminent tribunal."
92. Ours is a democratic country with a system of 'responsible' Government. A Government which is answerable to the legislature and can hold office only when it has the confidence of majority of the members of the State legislature, is called 'responsible' Government. If the courts are to take decisions on executive and legislative matters, it will throw up a legal conundrum, where the decision will be that of the courts and the responsibility will be that of the Government. The said situation is sure to undermine the symmetry in our Constitution. The Apex Court in R.K.Garg v. Union of India [(1981)4 SCC 675(CB)], while considering the constitutional validity of a statutory provision, held as follows:
"7. ..................................the legislature understands and correctly appreciates the needs of its own people, its laws are directed to problems made manifest by experience and its discrimination are based on adequate grounds. The presumption of constitutionality is indeed so strong that in order to sustain it, the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation.
8. Another rule of equal importance is that laws C.R.P.NO.2012/01 :: 93 ::
relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion etc. It has been said by no less a person than Holmes, J. that the legislature should be allowed some play in the joints, because it has to deal with complex problems which do not admit of solution through any doctrinaire or strait-jacket formula and this is particularly true in case of legislation dealing with economic matters, where, having regard to the nature of the problems required to be dealt with, greater play in the joints has to be allowed to the legislature. The court should feel more inclined to give judicial deference to legislative judgment in the field of economic regulation than in other areas where fundamental human rights are involved. Nowhere has this admonition been more felicitously expressed than in Morey v. Doud (354 US
457) where Frankfurter, J. said in his inimitable style:
'In the utilities, tax and economic regulation cases, there are good reasons for judicial self-restraint if not judicial deference to legislative judgment. The legislature after all has the affirmative responsibility. The courts have only the power to destroy, not to reconstruct. When these are added to the complexity of economic regulation, the uncertainty, the liability to error, the bewildering conflict of the experts, and the number of times the judges have been overruled by events--self-limitation can be seen to be the path to judicial wisdom and institutional prestige and stability.' The Court must always remember that 'legislation is directed to practical problems, that the economic mechanism is highly sensitive and complex, that many problems are singular and contingent, that laws are not abstract propositions and do not relate to abstract units and are not to be measured by abstract symmetry' ; 'that exact C.R.P.NO.2012/01 :: 94 ::
wisdom and nice adaption of remedy are not always possible' and that 'judgment is largely a prophecy based on meagre and uninterpreted experience'. Every legislation particularly in economic matters is essentially empiric and it is based on experimentation or what one may call trial and error method and therefore it cannot provide for all possible situations or anticipate all possible abuses. There may be crudities and inequities in complicated experimental economic legislation but on that account alone it cannot be struck down as invalid. The courts cannot, as pointed out by the United States Supreme Court in Secretary of Agriculture v. Central Reig Refining Company [338 US 604 (1950)] be converted into tribunals for relief from such crudities and inequities. There may even be possibilities of abuse, but that too cannot of itself be a ground for invalidating the legislation, because it is not possible for any legislature to anticipate as if by some divine prescience, distortions and abuses of its legislation which may be made by those subject to its provisions and to provide against such distortions and abuses. Indeed, howsoever great may be the care bestowed on its framing, it is difficult to conceive of a legislation which is not capable of being abused by perverted human ingenuity. The Court must therefore adjudge the constitutionality of such legislation by the generality of its provisions and not by its crudities or inequities or by the possibilities of abuse of any of its provisions. If any crudities, inequities or possibilities of abuse come to light, the legislature can always step in and enact suitable amendatory legislation. That is the essence of pragmatic approach which must guide and inspire the legislature in dealing with complex economic issues.
Xxxxxxx xxxxxxx xxxxx xxxxx
19. ...........................................The Court must always bear in mind the constitutional proposition C.R.P.NO.2012/01 :: 95 ::
enunciated by the Supreme Court of the United States in Munn v. Illinois (94 US 13), namely, 'that courts do not substitute their social and economic beliefs for the judgment of the legislative bodies'. The Court must defer to legislative judgment in matters relating to social and economic policies and must not interfere, unless the exercise of legislative judgment appears to be palpably arbitrary. The Court should constantly remind itself of what the Supreme Court of the United States said in Metropolis Theater Company v. City of Chicago [228 US 61 (1912)]:
'The problems of government are practical ones and may justify, if they do not require, rough accommodation, illogical it may be, and unscientific. But even such criticism should not be hastily expressed. What is best is not always discernible, the wisdom of any choice may be disputed or condemned. Mere errors of government are not subject to our judicial review'."(Emphasis supplied)
93. Mr.Justice Frankfurter in his dissenting opinion in West Virginia State Board of Education v. Barnette 319 US 624 (1943), advocated the need for judicial restraint while considering the validity of a legislation. The case arose, as the children of jehovah's witnesses refused to perform the flag salute, defying the mandatory provision of a law in force in the State of West Virginia. The said provision was challenged as unconstitutional. Though, earlier the said law was held to be constitutional on more than one occasion by the American Supreme C.R.P.NO.2012/01 :: 96 ::
Court, this time it was held to be unconstitutional by the majority. In his powerful dissenting opinion, which is respected the world over, the learned Judge observed:
"As a member of this Court, I am not justified in writing my private notions of policy into the Constitution, no matter how deeply I may cherish them or how mischievous I may deem their disregard. The duty of a judge who must decide which of two claims before the Court shall prevail, that of a State to enact and enforce laws within its general competence or that of an individual to refuse obedience because of the demands of his conscience, is not that of the ordinary person.
It can never be emphasized too much that one's own opinion about the wisdom or evil of a law should be excluded altogether when one is doing one's duty on the bench. The only opinion of our own even looking in that direction that is material is our opinion whether legislators could, in reason, have enacted such a law. In the light of all the circumstances, including the history of this question in this Court, it would require more daring than I possess to deny that reasonable legislators could have taken the action which is before us for review. Most unwillingly, therefore, I must differ from my brethren with regard to legislation like this. ....................... For the removal of unwise laws from the statute books, appeal lies not to the courts, but to the ballot and to the processes of democratic government...... . The Constitution does not give us greater veto power when dealing with one phase of 'liberty' than with another, or when dealing with grade school regulations than with C.R.P.NO.2012/01 :: 97 ::
college regulations that offend conscience. In neither situation is our function comparable to that of a legislature, or are we free to act as through we were a super- legislature. ............................. The reason why, from the beginning, even the narrow judicial authority to nullify legislation has been viewed with a jealous eye is that it serves to prevent the full play of the democratic process. The fact that it may be an undemocratic aspect of our scheme of government does not call for its rejection or its disuse. But it is the best of reasons, as this Court has frequently recognized, for the greatest caution in its use....... .
Tact, respect, and generosity toward variant views will always commend themselves to those charged with the duties of legislation so as to achieve a maximum of good will and to require a minimum of unwilling submission to a general law. But the real question is, who is to make such accommodations, the courts or the legislature?......................... A court can only strike down. It can only say 'This or that law is void'. It cannot modify or qualify, it cannot make exceptions to a general requirement........................................ If the function of this Court is to be essentially no different from that of a legislature, if the considerations governing constitutional construction are to be substantially those that underlie legislation, then indeed judges should not have life tenure, and they should be made directly responsible to the electorate. There have been many, but unsuccessful, proposals in the last 60 years to amend the Constitution to that end.......................... . C.R.P.NO.2012/01
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I think I appreciate fully the objections to the law before us. But to deny that it presents a question, upon which men might reasonably differ, appears to me to be intolerance. And since men may so reasonably differ, I deem it beyond my constitutional power to assert my view of the wisdom of this law against the view of the State of West Virginia...................
The attitude of judicial humility which these considerations enjoin is not an abdication of the judicial function. It is a due observance of its limits.............................................................. Courts, as has often been said, are not to think of the legislators, but of the legislature--the great, continuous body itself, abstracted from all the transitory individuals who may happen to hold its power. It is this majestic representative of the people whose action is in question, a coordinate department of the Government, charged with the greatest functions, and invested, in contemplation of law, with whatsoever wisdom, virtue, and knowledge the exercise of such functions requires.
To set aside the acts of such a body, representing in its own field, which is the very highest of all, the ultimate sovereign, should be a solemn, unusual, and painful act. Something is wrong when it can ever be other than that. And if it be true that the holders of legislative power are careless or evil, yet the constitutional duty of the court remains untouched; it cannot rightly attempt to protect the people by undertaking a function not its own. On the other hand, by adhering rigidly to its own duty, the court will help, as nothing else can, to fix the spot where responsibility lies, and to bring down on that precise locality the thunderbolt of popular condemnation."
(Emphasis supplied) C.R.P.NO.2012/01 :: 99 ::
Though the above wise words are found in a dissenting judgment, they are well settled principles concerning judicial restraint and deference to judicial wisdom, while considering the validity of a statute. They serve as the load-star to the judicial mariners voyaging the turbulent waters of social issues.
94. I have extensively quoted from the decision of the Apex Court in R.K.Garg v. Union of India [(1981)4 SCC 675] and also from the opinion of Justice Frankfurter, to stress the point that a legislation will be struck down by this Court only sparingly and that too on compelling grounds. The people of Kerala through their representatives in the legislature, have the right to decide what laws should govern them, subject, of course, to the constitutional limitations. The courts should respect the judgment and wisdom of the legislature on social issues, reflecting the will of "we, the people". The Judges, however learned or erudite they may be, may not substitute their judgment for that of the legislature. These principles will squarely apply to this case, as the provisions in Section 11(17) of the Act have been struck down by the Full Bench in Narayanan's case, though it is not expressly stated so. C.R.P.NO.2012/01
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The legal effect of the Full Bench decision is that the meaning of the word "tenant" in Section 11(17) defined in Section 2(6), is struck down to the extent it includes heirs of the deceased tenant, for the purpose of Section 11(17). The action of the Full Bench can be described as also adding an explanation to Section 11(17), stating that the word "tenant" used therein does not have the meaning assigned to it in Section 2(6). Thus, with great respect, it is pointed out that the Full Bench has ventured to judicially amend Section 11(17) and has thus entered the constitutionally forbidden terrain. This was done without adverting to the well settled canons of interpretation. It was done on very slender grounds. The Full Bench proceeded on the footing that the clog on eviction will make the provision unconstitutional. But, the Constitution confers on the State legislature powers to make permanent clog on eviction and such powers have been successfully exercised by it. See Section 11(11)(ii) of the Act and also Section 106 of the Kerala Land Reforms Act. Further, the Full Bench failed to notice that the provisions of Section 11(17) starts with a non obstante clause. So, the provisions of the said sub-section will prevail over other sub-sections. The benefit C.R.P.NO.2012/01 :: 101 ::
conferred on the tenant under Section 11(17), granting exemption from the operation of Section 11(3), subject to satisfying certain stipulations, is a right conferred on a tenant. It creates a corresponding duty in the landlord and the Rent Control Court. So, it is pointed out with great respect that the view expressed by the Full Bench that the benefit conferred on the tenant is a personal privilege of the original tenant, appears to be not correct. I have failed to persuade myself to subscribe to the views of my learned brother Padmanabhan Nair, J., in his judgment as he is endorsing the views of the Full Bench.
95. Giving due deference to the legislative judgment and giving effect to the plain words of the statute, I feel that there is nothing to be interpreted in Section 11(17) of the Act. Even assuming there is any ambiguity in the statute, the same should go in favour of the tenant, in view of the decisions of the Apex Court. The Apex Court in Mohd. Shafi v. Addl.Distt. And Sessions Judge [(1977)2 SCC 226] held as follows:
"If the language of the Explanation is susceptible of two interpretations, we should prefer that which enlarges the protection of the tenant rather than that which restricts it." C.R.P.NO.2012/01
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Again, the Apex Court in Mani Subrat Jain v. Raja Ram Vohra [(1980)1 SCC 1] observed as follows:
"5. It is too platitudinous to preach and too entrenched to shake, the proposition that rent control legislation in a country of terrible accommodation shortage is a beneficial measure whose construction must be liberal enough to fulfil the statutory purpose and not frustrate it. So construed, the benefit of interpretative doubt belongs to the potential evictee unless the language is plain and provides for eviction. That intendment must, by interpretation, be effectuated. This is the essence of rent control jurisprudence."
96. In the background of the above legal setting, which was not adverted to by the Full Bench, I am of the humble view that the decision in Narayanan v. Shalima (2003(2) KLT 317 FB) that the right of the original tenant under Section 11(17) of the Act will not devolve upon his heirs, does not lay down the correct legal position. The heirs of the tenant are also entitled to the protection, provided under the said sub-section against eviction under Section 11(3) of the Act. The reference is answered as above.
97. After, I almost finalised my judgment, I had the benefit of reading the brilliant and illuminative judgments of K.A.Abdul Gafoor and Kurian Joseph, JJ. I fully agree with the conclusions of Abdul C.R.P.NO.2012/01 :: 103 ::
Gafoor, J. With great respect, I am unable to endorse the views of Kurian Joseph, J.
Sd/-
K.BALAKRISHNAN NAIR Judge.
Padmanabhan Nair, J.
98. Whether the heirs of a tenant who was in occupation of the building from 1.4.1940 and has been in continuous occupation of the same till his death are entitled to the protection under Section 11 (17) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (`Rent Act' for short), from being evicted on the ground of bona fide need of the landlord is the question to be decided on the reference.
99. Revision Petitioners were the respondents/tenants in R.C.P.No. 53 of 1997 on the file of Additional Munsiff & Rent Controller, Kozhikode, who were the appellants in R.C.A.No.218 of 1998 on the file of the Additional District Court and Rent Control Appellate Authority, Kozhikode. Respondent-landlady filed Rent Control Petition for eviction of revision petitioners under Sections 11 (2)(b) (arrears of rent), 11( 3) (own occupation for the landlady's son) C.R.P.NO.2012/01 :: 104 ::
and 11(4) (i) (sub-letting) of the Rent Act. The following were the material averments in the petition. Late Vikkara Vellodi, predecessor- in-interest of the landlady let out petition schedule building bearing Door No.13/651(old No.12/268) of Municipality on 17-11-1950 to late A.M.Velayudhan who was the predecessor-in-interest of the revision petitioners. The rights of the landlord devolved upon the landlady under Ext.A1 deed dated 27-02-1974. Tenants defaulted payment of rent since July, 1995. They sub-let the building without the knowledge and consent of the landlady. The landlady bona fide needed the tenanted premises for the occupation of her son who is dependent on her, to start a business in home appliances. Revision petitioners contended that the building was let out to late Velayudhan on 1-4-1936 on a monthly rent of Rs.9/- and subsequently the rent was enhanced to Rs.75/-. The landlady refused to accept the rent which was sent by money order. There was no wilful default on the part of the tenant. Late A.M.Velayudhan was doing business in the building from 1936 to 1973 and he was solely depending on the income derived from the business for his livelihood. After the death of the original tenant, his C.R.P.NO.2012/01 :: 105 ::
widow Ammukutty was doing business till 1978 and on her death, fourth revision petitioner, who is the son of original tenant, was doing business. 3rd and 4th respondents are solely depending on the income derived from the business conducted in the petition schedule building and no suitable building was available in the locality. It was contended that the need put forward by the landlady is only a ruse to evict the petitioners and the same was not bona fide. The averment that the tenants sublet the building was denied. Since the tenancy originated in the year 1936, the tenants had acquired a right of permanent tenancy. The revision petitioners are permanent tenants and they are entitled to get all benefits conferred on such tenants under the Rent Act.
100. The Rent Controller, after considering the evidence, rejected the claim for eviction put forward by the landlady under Section 11(2)(b) and 11(4)(i) of the Rent Act. The need put forward by the landlady was found to be genuine. Rent Controller found that Exts.B2 to B16 rent receipts produced by revision petitioners to substantiate their contention that the entrustment was in the year 1936 will not show that those receipts are in respect of the petition schedule building. It C.R.P.NO.2012/01 :: 106 ::
was also found that the earliest receipt was dated 6-10-1941. The Rent Controller also relied on a decision inter parties in R.C.P.No.10 of 1977, which was a proceeding initiated for fixation of fair rent. It was found that the date of entrustment was in the year 1950 and that finding was confirmed by the Appellate Authority as well as the revisional court in R.C.R.P.No.96 of 1979. It was held that Ext.A3 order in R.C.R.P.No.96 of 1979 will operate as res judicata. Based on these materials, Rent Controller held that the entrustment was on 17-11-1950 for a monthly rent of Rs.75/- and hence the revision petitioners are not entitled to get the benefits under Section 11(17) of the Rent Act. Revision Petitioners appealed. Rent Control (Appellate Authority) held that in view of Exts.B2 to B16, the contention of the landlady that the entrustment was in the year 1950 cannot be accepted. However it was found that the earliest receipt was dated 22-7-1941. It was further held that there were no other documents produced by the revision petitioners to prove possession of the building by deceased Velayudhan prior to 1940. So it was held that the tenants failed to prove that their predecessor was in possession of the building prior to 1-4-1940. C.R.P.NO.2012/01
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Appellate Authority confirmed the finding of Rent Control Court that the revision petitioners are not entitled to claim protection under Section 11(17) of the Act. Challenging those decisions, this Civil Revision Petition has been filed.
101. When the case was heard by a Division Bench, counsel appearing for revision petitioners attacked the correctness of a Full Bench decision of this Court reported in Narayanan v. Shalima (2003(2) K.L.T.317 (F.B.)) in which it was held that the benefit conferred on the tenant under Section 11(17) of the Act is personal and that it cannot be inherited by his legal heirs. Before the Division Bench, revision petitioners filed C.M.P.No.4433 of 2001 to accept fresh documents as additional evidence in the C.R.P and prayed for a remand. The Division Bench observed that 'if the decision of the Full Bench was to hold the field, adjudication of the question might have given little relief, since the tenants were successors-in-interest and the benefits spoken to by section 11(17) of the Act were to be confined to the original tenants alone'. Division Bench was also of the view that the principles laid down in the decisions reported in Gian Devi Anand v. C.R.P.NO.2012/01
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Jeevan Kumar (A.I.R.1985 S.C.796), Karthiayani v. Anandan (2004(2) K.L.T 575) and George Peter v. T.K.Sali (I.L.R.1999(1) Kerala 529) had not been cited and considered by the Full Bench and hence a fresh examination of the issue was necessary and referred the matter to be heard by a larger Bench.
102. When the matter was placed before the Full Bench it was observed that in Narayanan's Case (supra) this Court interpreting Section 11(17) of the Act, had held that `the context in which the expression "tenant" has been used under the above provision required the adoption of a restricted meaning than the one ascribed to the said expression in the definition of the said expression under Section 2(6) of the Act and that the benefit conferred under Section 11(17) of the Act is a personal privilege conferred on the tenant who has to be in possession of the premises as a tenant on 1-4-1940 and who continued as such'. Full Bench formulated three questions. In this Reference we are mainly concerned with the third point. It reads as follows:-
"Even if it is found that deceased A.M.Velayudhan has been in continuous occupation of the shop room in question as a tenant from 1-4-1940 onwards and continued as such until his death in the year 1973, are the revision C.R.P.NO.2012/01 :: 109 ::
petitioners who are the legal heirs of the said Velayudhan entitled to claim the benefit of immunity from eviction under Sec.11(17) of the Act as an inherited right, in a Rent Control Petition filed in the year 1997?".
The Full Bench was prima facie inclined to agree with the decision rendered in Narayanan's Case (supra) that the benefit which was sought to be conferred on the tenant is a personal privilege; but it was held that there may be cases wherein the conferee of the privilege was in continuous occupation of the premises from 1-4-1940 as a tenant and died only after the commencement of the Act. It was further opined that if the landlord sought eviction in the year 1970 Velayudhan could have successfully resisted the application and claimed permanency under Section 11(7) of the Rent Act. It was further held that whether such a right available to Velayudhan after the commencement of the Act will stand extinguished on his death in the year 1973 is also to be considered. The Full Bench was of the opinion that the principle laid down in Narayanan's Case (supra) requires re-consideration and hence referred the matter to the Larger Bench.
103. To understand and appreciate the meaning of Section 11(17) of the Act, it is necessary to know the legislative history also. C.R.P.NO.2012/01
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Prior to the formation of the State of Kerala, law prevailing in Travancore-Cochin area was the Travancore Cochin (Buildings Lease and Rent Control) Order 1950. It was passed under Section 13 of the Travancore Cochin Public Safety Measures Act, 1950. In Malabar District, the law applicable was that of the State of Tamil Nadu. Initially, the law prevailing in Madras State was the Madras Rent Control Order, 1941. In the year 1945 two separate orders were issued, in respect of residential buildings Madras House Rent Control Order 1945 and the Madras Non-Residential Building Rent Control Order 1945 in respect of non-residential buildings. Those orders were followed by the Madras Buildings (Lease and Rent Control) Act, 1946. Section 18 of the Act (Act XV of 1946) provides that all proceedings commenced and taken under the Madras House Rent Control Order, 1945 and Madras Non Residential Building Rent Control Order, 1945, and pending at the commencement of the Act were deemed to have been commenced or taken under the corresponding provisions of the Act. That Act was repealed by Madras Building (Lease and Rent Control) Act, 1949. Some of the provisions in that Act were amended by C.R.P.NO.2012/01 :: 111 ::
the Madras Buildings (Lease and Rent Control) Act, 1951. Subsequently, that Act was repealed by Tamil Nadu Buildings (Lease and Rent Control) Act, 1964 (Tamil Nadu Act 18/1964). A perusal of the orders and Acts referred to above shows that none of the orders or Acts contain a provision similar or akin to that of section 11(17) of the Kerala Rent Act. It is also pertinent to note that Rent Control Acts of Andhra Pradesh, Bihar, Bombay, Delhi, Haryana, Karnataka, Madhya Pradesh, Maharashtra, Rajasthan, Tamil Nadu, U.P. and West Bengal now in force in Union of India also do not contain a provision similar to Section 11(17) of the Rent Act.
104. The Kerala Buildings (Lease and Rent Control) Ordinance, 1959 was promulgated with effect from 17th June, 1959 repealing the Travancore Cochin Buildings (Lease and Rent Control) Act, 1950 and also the Madras (Lease and Rent Control) Act as in force in the Malabar District referred to in section 4 of the States Re- organisation Act, 1956. Section 11 of the Ordinance deals with eviction of a tenant but it had only sixteen sub-sections. The Ordinance did not contain any provision similar to Section 11(17) of the present Rent Act. C.R.P.NO.2012/01
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The Kerala Buildings (Lease and Rent Control) Bill, 1958 was placed before the Legislative Assembly on 12-12-1958. Section 11 of Bill shows that it deals with eviction of a tenant. It contains only sixteen sub-sections. The Bill also did not contain any provision corresponding to Section 11(17) of the Rent Act. The Bill was sent to Select Committee. The Select Committee considered the Bill clause by clause and submitted a report. Section 11 of the Bill dealt with eviction of the tenant. The Bill approved by Select Committee also did not contain a provision similar to the present section 11(17). But when the Bill came up for discussion before the Legislative Assembly on 31-3- 1959, the Law Minister moved an amendment to Section 11 to add sub- section 17 also. The amendment proposed reads as follows:-
"(17) Notwithstanding anything contained in this section a tenant who has been in continuous occupation of a building for a period of fifteen years either as tenant or otherwise, shall not be liable to be evicted for bona fide occupation of the landlord or of the occupation by any member of his family provided that a landlord of a residential building shall be entitled to evict such a tenant of that building if the landlord has been living in a place outside the city, town or village in which the building is situated for a period of not less than five years C.R.P.NO.2012/01 :: 113 ::
immediately before he makes an application to the Rent Control Court for being put in possession of the building and requires the building, bona fide for his own permanent residence or of the permanent residence of any member of his family or the landlord is in dire need of a place for residence and has none of his own".
The amendment was opposed. The Law Minister agreed to delete words 'or otherwise' and 'immediately' and also agreed to change the expression 'for a period of 15 years' to 'from 1-4-1940' from the proposed amendment. He agreed to add an explanation to the Section also. That amendment was put to vote and carried. It reads as follows:-
"(17) Notwithstanding anything contained in this section, a tenant who has been in continuous occupation of a building from 1st April 1940 as a tenant shall not be liable to be evicted for bona fide occupation of the landlord, or of the occupation by any member of his family provided that a landlord of a residential building shall be entitled to evict such a tenant of that building if the landlord has been living in a place outside the city, town or village in which the building is situated for a period of not less than five years before he makes an application to the Rent Control Court for being put in possession of the building and requires the building, bona fide for his own permanent residence or of the permanent residence of any member of his family or the landlord is in dire need of a place for C.R.P.NO.2012/01 :: 114 ::
residence and has none of his own.
Explanation.- In computing the period of fifteen years, the period, if any, during which the landlord was residing outside the city, town or village in which the building is situate shall be excluded." Subsequently the words "of fifteen years" were deleted in the Explanation and words "continuous occupation" were added.
105. The objects and reasons or the debate on the enactment do not contain any indication as to why the Legislature made such a provision regarding the tenant who came into occupation of the building prior to 1-4-1940. Section 11(17) of the Rent Act reads as follows:-
"11. Eviction of tenants:-.. . . . . . . . .
. . . . . . . . . . . . . . ''(17)Notwithstanding anything contained in this section a tenant who has been in continuous occupation of a building from 1st April1940 as a tenant, shall not be liable to be evicted for bona fide occupation of the landlord or of the occupation by any member of his family dependent on him, provided that a landlord of a residential building shall be entitled to evict such a tenant of that building if the C.R.P.NO.2012/01 :: 115 ::
landlord has been living in a place outside the city, town or village in which the building is situated for a period of not less than five years before he makes an application to the Rent Control Court for being put in possession of the building, and requires the building bona fide for his own permanent residence or for the permanent residence of any member of his family or the landlord is in dire need of a place for residence and has none of his own.
Explanation:- In computing the period of continuous occupation from 1st April, 1940, the period, if any, during which the landlord was residing outside the city, town or village in which the building is situated shall be excluded."
The Explanation provides that in computing the period of continuous occupation from 1-4-1940, the period in which the landlord was residing outside the city, town or village in which the building is situated shall be excluded. Both sides were not able to give us a satisfactory meaning of the Explanation.
106. The preamble of the Rent Act says that the Act is meant to regulate the leasing of buildings and to control the rent of such C.R.P.NO.2012/01 :: 116 ::
buildings in the State of Kerala. A perusal of the objects and reasons shows that the Act is also meant for prevention of unreasonable eviction of tenants from the buildings. Section 2(3) of the Rent Act defines `land lord' and Section 2(6) defines 'tenant'. Sub-sections (3) and (6) of Section 2 read as follows:
"2. Definitions:- In this Act, unless the context otherwise requires,-
(1) ................
(2)..........
(3). "landlord" includes the person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another or on behalf of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent, if the building were let to a tenant".
(4) .. . . . . . . . . . . .
(5). . . . . . . . . . . . .
(6) "tenant" means any person by whom or on whose account rent is payable for a building and includes:-
(i) the heir or heirs of a deceased tenant, and C.R.P.NO.2012/01 :: 117 ::
(ii) a person continuing in possession after the termination of the tenancy in his favour, but does not include a Kudikidappukaran as defined in the Kerala Land Reforms Act, 1963 (Kerala Act 1 of 1964), or a person placed in occupation of a building by its tenant, or a person to whom the collection of rents or fees in a public market, cart-stand or slaughter house or of rents for shops has been farmed out or leased by a Municipal Council, Municipal Corporation, Township Committee or Panchayat.
(7) . . . . . . . . . . . . . . . . . . ."
The word `tenant' includes the legal heir/heirs of a deceased tenant and a statutory tenant. Kudikidappukaran as defined in the Kerala Land Reforms Act is specifically excluded from the definition of tenant. Use of the words "unless the context otherwise requires" in the beginning of Section 2 of the Rent Act shows that the definition of the word `tenant' under the Rent Act is not exhaustive.
107. A perusal of the various sections of the Rent Act shows that it is not meant to confer any fixity or permanent tenancy. Kudikidappukaran as defined in the Kerala Land Reforms Act is specifically excluded from the definition of the tenant as can be seen from Section 2(6) of the Rent Act. Second proviso to Section 11(1) of C.R.P.NO.2012/01 :: 118 ::
the Rent Act makes the position very clear.
''11. Eviction of tenants:-
(1) . . . . . . . .
Provided that nothing contained in this section shall apply to a tenant whose landlord is the State Government or the Central Government or other public authority notified under this Act.:
Provided further that where the tenant denies the title of the landlord or claims right of permanent tenancy, the Rent Control Court shall decide whether the denial or claim is bona fide and if it records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and such Court may pass a decree for eviction on any of the grounds mentioned in this section, notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded." (emphasis supplied).
The Rent Act does not define the words " permanent tenancy". It is to be noted that a lease in perpetuity can be created either by an express grant or by a presumed grant. Normally such leases are agricultural leases or they were executed before the commencement of Transfer of Property Act. It is also trite law that if the lease is silent regarding duration of the term to create a tenancy at will it could be converted by payment of rent into a tenancy from year to year or month to month. In view of the C.R.P.NO.2012/01 :: 119 ::
provisions contained in the second proviso to Section 11(1) of the Rent Act, if the tenant puts forward a contention of permanent tenancy, the Rent Control Court cannot decide that issue. The Rent Control Court can only consider whether such claim is bona fide. If the claim is bona fide, the Rent Control Court shall record a finding to that effect and direct the parties to approach a civil court.
108. It is argued that the bar is to claim eviction under Section 11(3) of the Rent Act alone and the landlord can maintain an action for eviction on all other grounds. It is true that Section 11(17) applies only to cases filed under Section 11(3) of the Act. Ground available under Section 11(3) is a very valuable right. If eviction is ordered under Section 11(2)(b) the tenant can deposit the arrears of rent and ask for vacating the order of eviction under Section 11(2)(c) of the Act. Before initiating action under Section 11(4)(i) the landlord is bound to give a notice. If the tenant terminates the sub-tenancy within the stipulated time, the landlord may not get any relief. If eviction is sought on the ground of reconstruction or renovation the tenant has the first option for re-occupation. So there is no merit in the argument that C.R.P.NO.2012/01 :: 120 ::
there is no restriction to the landlord to file an application for eviction on other grounds enumerated in Section 11 of the Rent Act.
109. Learned counsel appearing for the revision petitioners has relied on Section 106 of the Kerala Land Reforms Act and contended that the Legislature has got every power to exempt a tenancy arrangement from the operation of the Act. Section 106 of the K.L.R.Act deals with Special provisions relating to lease for commercial or industrial purposes. If the lessee had constructed a building for such commercial or industrial purpose before a particular date, he shall not be liable to be evicted. It is to be noted that the very purpose of bringing such a legislation was to confer fixity of tenure on the tenants. The K.L.R. Act is meant to protect the kudikidappukars and tenants from eviction and also confer fixity of tenure. So where ever the Legislature intended to create permanency or fixity, provisions were made appropriately in the concerned Legislation. Both laws are separate and distinct and operate at different fields. Moreover interpretation of various provisions of one Act cannot be taken as a ground to interpret the provisions contained in the other Act.
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110. To understand the meaning of Section 11(17) of the Act, it is also necessary to analyse various provisions of the Rent Act. Section 11 (1) provides that a tenant shall be evicted only in accordance with the provisions of the Rent Act. First proviso to Section 11(1) exempts buildings belonging to State Government from the application of the provisions of the Rent Act. Second proviso to Section 11(1) takes away the jurisdiction of the Rent Control Court to confer permanency in the leasing arrangements. Section 11(2) deals with eviction of a tenant on the ground of arrears of rent. Section 11(2)(b) confers power on the Rent Control Court to pass an order directing the tenant to put the landlord in possession if the tenant wilfully fails to pay the rent. Section 11(2)(c) provides that such an order can be vacated provided the tenants deposits the amount specified in the Section. Section 11(3) deals with the ground for eviction on the ground of bona fide need. It provides that the landlord may apply to the Rent Control Court for a direction to the tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation or for occupation of any member of his family dependent on him. First proviso C.R.P.NO.2012/01 :: 122 ::
to Section 11(3) provides that the Rent Control Court shall not give any such direction if the landlord has another 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. Second proviso to section 11(3) stipulates that even if the landlord proves the bona fide need, the Rent Control Court shall not pass an order of eviction, if the tenant proves that he is depending for his livelihood mainly on the income derived from any trade or business carried on in the building taken on rent and no other suitable building for such trade or business is available in the locality. The third proviso deals with transfer inter vivos. It provides that no landlord shall be entitled to approach the Rent Control Court until the expiry of one year from the date of instrument. Fourth proviso deals with the transferee of a landlord after passing of the order. It provides that if the landlord transfers or assigns his right in respect of a building on which he had already obtained an order of eviction, the transferee is not entitled to be put in possession unless he proves his bona fide need. Section 11(4)(i) of the Rent Act deals with the ground C.R.P.NO.2012/01 :: 123 ::
for eviction on sub-letting. Proviso to sub-section (i) of Section 11(4) states that before initiating action under sub-section 11(4)(i), notice intimating contravention of the condition of the lease should be given to the tenant and he should be given 30 days time to terminate the sub- lease. There is an explanation to that sub-section by which the partition of a joint family property and dissolution of a firm etc are dealt with. Section 11(4)(ii) of the Act confers right on the landlord to evict the tenant if he uses the building in such a manner as to destroy or reduce its value or utility materially and permanently . Section 11(4)(iii) deals with the grounds for eviction of a tenant who has already in his possession a building or who subsequently acquires possession or puts up a building. Section 11(4)(iv) of the Rent Act deals with eviction on the ground of re-construction. That sub-section contains three provisos. First proviso casts a duty on the landlord to reconstruct the building within a time frame. Second proviso confers power on the court to issue necessary directions regarding re-construction. Third proviso deals with the option of a tenant to have the reconstructed building allotted to him. Section 11(4)(v) confers a right on the landlord to evict a tenant who C.R.P.NO.2012/01 :: 124 ::
ceases to occupy the building for six months without reasonable cause. Sub-section (5) deals with the right of a landlord to evict the tenant for renovation of the building. Sub-section (6) deals with the liability of the tenant to pay enhanced rent after renovation . Sub-section (7) provides that if the landlord of a building is a religious, charitable, educational or other public institution, it may apply for eviction of a tenant. Sub- section (8) deals with additional accommodation. Sub-section (9) provides that if the lease is for a specified period, the landlord cannot approach the Rent Control Court before the expiry of such period. A reading of sub-section (10) shows that unless the need is bona fide, direction cannot be given to the tenant to put the landlord in possession. First proviso to sub-section (10) deals with the of additional accommodation and the second proviso confers power on the Rent Control Court to give reasonable time to the tenant to put the landlord in possession. Sub-section (11) is very material for analysing the present case. Sub-section 11(i) reads as follows:-
"(11) Notwithstanding anything contained in sub-sections (1) to (10) no order for eviction or for putting the landlord in possession shall be passed,--
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(i) against any tenant who is engaged in any employment or class of employment notified by the Government as an essential service for the purpose of this sub-section, unless the landlord is himself engaged in any employment or class of employment which has been so notified and the landlord requires the building for his own occupation; or
(ii)...............".
111. Section 11(11)(i) provides that if the tenant is an employee or class of employment notified by the Government for the purpose of section (11)(i), he cannot be evicted for any of the grounds mentioned in sub-sections (1) to (12). Section 11(11) (ii) provides that if the building was let out for use as an educational institution recognised by the Government or any authority empowered by them in that behalf, the tenant of that building is not liable to vacate or surrender possession so long as such recognition continues. It is to be noted that every Government employee is not entitled to claim the benefit conferred under that sub-section. He must be engaged in an employment notified as an essential service for the purpose of section 11(11)(i). So unless these three conditions are satisfied, the tenant is not entitled to resist an C.R.P.NO.2012/01 :: 126 ::
action for eviction under this sub-section. A reading of sub-section (11) of Section 11 shows that this particular benefit can be claimed by a tenant only so long as he continues in any employment or class of employment notified by the Government as an essential service for the purpose of this section. Sub-section (12) deals with the right of a tenant to approach the Rent Control Court for restoration of possession of the building from which he was evicted on the ground of bona fide occupation. Sub-section (12) provides that if a landlord who obtained possession of a building in pursuance of an order passed by sub-section (3) does not occupy it within the prescribed time limit, the tenant can approach the Rent Control Court for an order of restoration of possession. Sub-section (13) provides that if the tenant fails to apply for possession under sub-section (12) the competent authority shall have the power to allot the building for the occupation of any of the officers or persons specified in sub-section (3) of section 4. Proviso to that section says that the provision in that sub-section will not be applicable to buildings for which the monthly rent does not exceed fifteen rupees.
Sub-section (14) confers power on the Rent Control Court to direct the C.R.P.NO.2012/01 :: 127 ::
landlord to pay compensation. Sub-section (15) provides that even after the dismissal of the petition filed by the landlord, the tenant shall continue subject to the provisions of the Rent Act and the landlord can evict the tenant only on establishing one or more of the grounds mentioned in sub-sections (2) to (8).
112. A reading of sub-section (17) shows that it is an exception to Section 11(3). The primary and foremost task of interpreting a statute is to ascertain the intention of the legislature, actual or imputed. The court must then strive to so interpret the statute as to promote and advance the object and purpose of the Act. In V.F. & G.Insurance Co. v. M/s. Fraser and Ross (A.I.R.1960 S.C. 971) the Supreme Court has held as follows:-
"It is well settled that all statutory definitions or abbreviations must be read subject to the qualification variously expressed in the definition clauses which created them and it may be that even where the definition is exhaustive inasmuch as the word defined is said to mean a certain thing, it is possible for the word to have a somewhat different meaning in different sections of the Act depending upon the subject or the context. That is why all definitions in statutes generally begin with the qualifying words namely, unless there is anything repugnant in the C.R.P.NO.2012/01 :: 128 ::
subject or context. In view of this qualification, the Court has not only to look at the words but also to look at the context, the collocation and the object of such words relating to such matter and interpret the meaning intended to be conveyed by the use of the words under the circumstances."
In M/s.Girdhari Lal & Sons v. Balbirnath (A.I.R. 1986 S.C.1499) the Apex Court held as follows:-
"The primary and foremost task of a court in interpreting a statute is to ascertain the intention of the legislature, actual or imputed. Having ascertained the intention, the Court must then strive to so interpret the statue as to promote and advance the object and purpose of the enactment. For this purpose, where necessary the court may even depart from the rule that plain words should be interpreted according to their plain meaning. There need be no meek and mute submission to the plainness of the language."
In Imad Ali v. Keshav Chand [(2003)4 SCC 635] the Supreme Court held that the Rent Act is not only enacted for the benefit of the tenant but also for the benefit of the landlord and therefore the provisions of the Act have to be harmoniously interpreted. It was held that inheritance or assignment does not confer any better title than his predecessor.
113. Learned counsel appearing for the petitioners C.R.P.NO.2012/01 :: 129 ::
strenuously argued that the expression 'tenant' used in Section 11(7) must not be given a restricted meaning than the one ascribed to the expression in the definition of the said expression under Section 2(6) of the Rent Act. It is argued that it is for the Legislature either to confer or take away the power of a particular class of persons and in this case, the Legislature has not thought it fit to curtail the right available to the legal heir of a tenant. It is argued that by restricting the scope of the right of a legal heir of a tenant, the court is usurping on the legislative power. Learned counsel for the petitioners relied on a decision reported in Damadilal v. Parashram (A.I.R.1976 S.C. 2229) in which it was held that there is no distinction between a contractual tenant and a statutory tenant. In that case, the Supreme Court was considering whether a statutory tenant had heritable interest in the tenancy arrangement. It was held that there is absolutely no distinction between a contractual tenant and a statutory tenant and whatever rights available to a contractual tenant are available to a statutory tenant also. A reading of the definition of the word 'tenant' in Section 2(6) of the Rent Act shows that tenant includes statutory tenant also. So the principle laid down in C.R.P.NO.2012/01 :: 130 ::
Damadilal's Case (supra) can have no application to the facts of this case.
114. Learned counsel relied on a decision of the Constitution Bench reported in Gain Devi v. Jeevan Kumar (A.I.R. 1985 S.C.796) in which the Supreme Court has considered whether there is any distinction between a statutory tenant and a contractual tenant under the provisions of Delhi Rent Control Act. It is held that a a tenant even after termination of the tenancy continues to to have an estate or interest in the tenanted premises and the tenancy rights both in respect of residential premises and commercial premises are heritable. It is held that the heirs of a deceased statutory tenant are also entitled to the same protection available to a contractual tenant. The principle laid down in that decision can have no application to the facts of this case.
115. In Gantusa H.Baddi v. Meerabai G.Pai [(2000) 4 S.C.C.586], the Karnataka High Court took the view that a tenancy right in respect of a non-residential premises under the Karnataka Rent Act is not heritable. The Supreme Court after interpreting the various provisions of the Act held that in the absence of any contrary provisions C.R.P.NO.2012/01 :: 131 ::
in the Act, it must be held that the tenancy in respect of a non-residential premises is also heritable. That decision also can have no application to the facts of the case.
116. A reading of the various decisions referred to above and relied on by the learned counsel for the revision petitioner shows that those decisions are not rendered after considering a provision similar to Section 11(17) of the Kerala Rent Control Act but considering the meaning of the word `tenant' under the Rent Control Acts of Madhya Pradesh, Delhi and Karnataka. Counsel for the petitioners has no case that any of those Acts contains a provision similar to that of Section 11(17) of the Rent Act. The Apex Court was not called upon to consider a similar provision. So the decisions referred to by counsel for the petitioners are not helpful in deciding the issue raised in the case.
117. Learned counsel appearing for the petitioners refers also to a decision reported in George Peter v. Sali (I.L.R. 1999(1) Kerala 529). A Division Bench of this Court held that by virtue of the inclusive definition of the tenant, the legal representatives of a deceased tenant have got all the rights a tenant has including the right to move C.R.P.NO.2012/01 :: 132 ::
the Rent Control Court for an order directing that they shall be restored to possession of the building under Section 11(12) of the Rent Act. The correctness or otherwise of that decision need not be considered in this case. A reading of Section 11(12) of the Rent Act shows that the tenant has got a right to seek restoration of possession. Sub-section (13) shows that if the tenant fails to seek restoration, the competent authority can allot the building to the officers mentioned in that sub-
section. So the intention of the Legislature is very clear. If a landlord evicts a tenant on the ground of bona fide own occupation and if he fails to occupy the same, the building can be allotted to other tenants. The principle laid in George Peter's Case is also of no help to the petitioners in this case.
118. Another decision relied is Viswanathan v. Abdul Hameed (2000(3) K.L.T.712). In this case, a Division Bench of this Court held that in order to attract the provisions of Section 11(17) of the Rent Act, what is needed is only continuous occupation as a tenant. It is true that in that case, Division Bench held that legal representatives of the tenant who was in occupation of the building from 14-10-1933 C.R.P.NO.2012/01 :: 133 ::
till his death were not liable to be evicted on the ground available under Section 11(3) of the Rent Act. Whether the benefit conferred on a tenant under Section 11(17) was a privilege or a right was not raised and considered in that case. The Bench proceeded as if it is admitted that it is a right which could be inherited by the legal heirs also. The principle laid down in Viswanathan's Case (supra) was considered by the Full Bench in Narayanan's Case. But the Full Bench did not follow the principle laid down in that decision. It may also be noted that in Viswanathan's Case (supra) what the Bench mainly dealt with was the requirement of continuous occupation.
119. Learned counsel also relied on a decision reported in Raghavan v. Valsaraj (2004(3) K.L.T. 134) where a Division Bench of this Court had considered whether the execution of a fresh lease deed between the landlord and the tenant after 1-4-1940 will extinguish or disrupt the tenancy. It was held that it will not extinguish or disrupt the tenancy. The question whether the benefit conferred on a tenant under Section 11(17) of the Rent Act is a right which is heritable by the heirs or a privilege which will come to an end on account of the death of a C.R.P.NO.2012/01 :: 134 ::
tenant who has been in continuous occupation of the building from 1-4- 1940 was not raised and considered by the Division Bench. So the principle laid down in Raghavan's Case is also of no help to the petitioners.
120. Learned counsel for the petitioners also relied on a decision reported in Karthiayani v. Anandan (2004(2) K.L.T.575), wherein a Division Bench of this Court held that a legatee under a testamentary disposition cannot claim the status of a statutory tenant and resist the claim for eviction unless the legatees are natural heirs. It was held that the tenant includes the heir or heirs of a deceased tenant but not a legatee under a will. It was further held that the word heir has to be decided in accordance with the personal law of the tenant and hence a legatee will not come within the definition of Section 2(6)(i) of the Rent Act. The principle laid down in that decision also can have no application to the facts of this case.
121. A reading of Section 11(17) of the Rent Act shows that to resist an action for eviction with the aid of provision of this sub- section the tenant must prove three facts: (i) that he came into C.R.P.NO.2012/01 :: 135 ::
occupation of the building prior to 1-4-1940; (ii) that occupation from 1-4-1940 is as a tenant and (iii) that he has been in continuous occupation of the building from that date. So unless the tenant establishes that he started his occupation of the building as a tenant on 1-4-1940, he will not get that benefit even if it is proved that he came into occupation of the building prior to 1-4-1940.
122. The words 'occupation' and `possession' are not synonymous. In Muhammed v. Abdul Rahiman (1983 K.L.T.874) a learned Single Judge of this Court held that occupation and possession are not synonymous terms. One may possess land or building without occupying the same. In Mathai Antony v. Abraham (2004(3) K.L.T.169) also a Division Bench of this Court considered the difference between occupation and possession. It was held that the word "possession" means holding of such possession. Animus possidendi, means, the intention to exclude other persons. The word "occupy" has to be given a meaning so as to hold that the tenant is actually using the premises and not mere physical presence or possession. In Ram Dass v. Davinder [(2004) 3 SCC 684] the Supreme C.R.P.NO.2012/01 :: 136 ::
Court has held that in common parlance the words 'possession' and 'occupation' may be used interchangeably but in law "possession" amounts to holding the property as an owner, while "occupy" is to keep possession by being present in it. In the case at hand it is admitted that from 1973 till 1978 the widow of A.M.Velayudhan alone was in occupation. It is also admitted that from the year 1978 4th respondent alone is in occupation. The original tenant had left widow and 7 children. Can it be said that occupation of the building by one among them is occupation of all the heirs? Respondents 1 to 3 and 5 to 7 may have possession of the building but they are not in occupation of the same. In H.C.Pandy v. G.C.Paul (A.I.R.1989 S.C. 1470) it was held that legal heirs of original tenant succeed to tenancy as joint tenants. It is the single tenancy which devolves on the heirs.
123. A discussion of the various provisions of Section 11 of the Rent Act shows that it deals with rights as well as privileges. A Full Bench of this Court has considered the meaning of the words "rights" and "privileges" in Bhaskaran v. Additional Secretary (1987(2) K.L.T.903). It was held as follows:-
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"Where there is a right, there is a duty.
Where it is only a privilege, it is only liberty without any corresponding duty. Privilege provides an opportunity to choose among alternatives. Privilege can be the dispensation of a bounty, a conferment of a personal benefit or advantage, a sanction of immunity or the grant of an exemption. Privilege is thus essentially discretionary. It may or may not be granted. Privilege has thus no compulsive element and is thus not judicially enforceable."
124. A reading of the provisions of the Rent Act will show that it is not meant to confer fixity or permanency on tenancy arrangement. It only intended to regulate the leasing of the buildings and to control the rent and to protect the tenant from unreasonable eviction. Section 11(11) of the Rent Act will show that in certain cases, the Legislature has intended to give a benefit or privilege to a class of employees covered by the said section. Viewed from that context, the only inference possible is by introducing section 11(17) the Legislature wanted to confer a privilege on a tenant who came into occupation of a building from eviction provided he is in continuous occupation from 1st April 1940. That can only be a personal right. The privilege conferred to such a tenant cannot be equated to a right which could be inherited. C.R.P.NO.2012/01
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125. In O.P.No.1045 of 1962, a learned Single Judge of this Court had considered the scope and ambit of Section 11(17) of 1959 Act. It was held that it is a benefit given to a tenant who was inducted into possession prior to 1-4-1940 and continued to be in possession on the date of proceedings for eviction. It was held as follows:-
"The Section that defines the term "tenant"
is irrelevant for construing the scope of section 11(17). All that the definition in section 2(6) says is that the surviving spouse, any son or daughter of a deceased tenant who had been living with the tenant in the building as a member of the tenant's family, shall be deemed to be a tenant. I am unable to understand how this definition either helps or is against the landlord. It appears to me that in cases where a tenant is not able to prove that he has been in continuous occupation of a building from 1st April, 1940, sub-section (17) of Section 11 would have no application."
The principle laid down in O.P.No.1045 of 1962 was approved and relied on by a Division Bench in an unreported decision in Sarojini v. Safia (C.R.P.Nos. 2107 and 2108 of 1992). The Bench noted that the provisions of Section 11(7) in 1959 Act and present Act are the same and held as follows:-
"....We are of the view that the benefit of the protection under S.11(17) is available only to the tenant C.R.P.NO.2012/01 :: 139 ::
who was inducted into possession prior to the date and continued to be in possession on the date of proceedings for eviction and his legal representatives, who came into the category of tenants by virtue of the inclusive definition in S.2(6) of the Act cannot claim the protection. In the instant case, the present occupants admittedly are the legal representatives of deceased Raghavan the original tenant and they came into possession after his death. They therefore cannot claim the benefit of S.11(17)".
126. In Prasanna v. Haris [2005(2)K.L.T.365] another Division Bench of this Court also considered the scope of Sections 2 (6) and 11(17) of the Rent Act. It was held that the word tenant includes the heirs of a deceased tenant. It was held as follows:-
"The definition of `tenant' in the Kerala Act makes no room for doubt in this regard and the tenant and heirs of the statutory tenant can also claim all the benefits available to the original tenant. '' Regarding the protection claimed under Section 11(17) of the Rent Act it was held as follows:-
"For getting the benefit under S.11(17), one has to be in possession of the building before 1940 as a tenant.
. ....... . . . . .. . . . . . . . . . .
Further, no documentary or admissible evidence was adduced by the tenant to show that even the original C.R.P.NO.2012/01 :: 140 ::
tenant was in continuous occupation of the building before 1940. Production of a calendar, without any details cannot establish that he was in continuous occupation of the building from a date anterior to 1940 till the date of the petition."
It was also held that the protection under section 11(17) of the Rent Act can be claimed only by a tenant who was in occupation on or prior to 1-4-1940 and cannot be claimed by his heir who succeeds the original tenant after 1940 as it was a personal right of the tenant who was in occupation of the building.
127. A reading of the various provisions of the Act shows that a tenant includes a contractual tenant and a statutory tenant . The heirs of a statutory tenant are also entitled to inherit all rights of the tenant. But to claim protection under Section 11(17) of the Rent Act, it must be shown that the tenant came into occupation of the building as a tenant prior to 1940 and he has been in continuous occupation since then. If the tenancy started long prior to 1940 and if the original tenant died prior to 1940, his heirs who came into occupation of the building prior to 1940 are also entitled to claim protection provided they satisfy the other requirements of the sub - section. There is no question of C.R.P.NO.2012/01 :: 141 ::
giving any restricted meaning to the word `tenant'. If the person occupied a rented building as a tenant as defined in the Rent Act prior to the cut off date and he has been in continuous occupation of the same, he is entitled to claim privilege conferred on him under Section 11(17) of the Rent Act. But the protection provided under Section 11(17) is a personal privilege available to the tenant who came into occupation of the building on 1-4-1940 and has been in continuous occupation of the same.
128. The next question to be considered is whether there is any difference between the death of the tenant prior to the commencement of the Rent Act and after the commencement of the Act. The question of inheritance is not decided in accordance with the provisions of Rent Act. The Rent Act does not create any new rule regarding succession of the estate of the deceased tenant. It is governed by the provisions of the Transfer of Property Act and by the personal law applicable to parties. If on the date of death of a tenant, he had a right or estate in the tenancy, that right will be inherited by his heirs irrespective of the date of death. Whether the tenant dies before or C.R.P.NO.2012/01 :: 142 ::
after 1965 will not make any difference. But if it is a personal privilege, it will come to an end by the death of a person who was in occupation as a tenant from 1-4-1940. In Narayanan's Case, the Full Bench has considered the issue and held that the benefit conferred on a tenant under Section 11(17) of the Rent Act is a personal right or benefit conferred on a tenant and not a right. If the tenant who came into occupation prior to 1940 dies after that date his heirs will not inherit the benefits conferred on the deceased tenant under Section 11(17) of the Rent Act. The principle laid down in Narayanan's Case (supra) does not suffer from any infirmity which warrants re-consideration. The principle laid down in Narayanan's Case does not require any reconsideration.
129. The question referred is answered as above and case is sent back to the Bench which referred to decide the rest of the issues on facts in accordance with law.
Sd/-
K.Padmanabhan Nair, (Judge) C.R.P.NO.2012/01 :: 143 ::
Order of the Court
130. In view of the majority opinion, the Full Bench decision in Narayanan v. Shalima, 2003 (2) KLT 317, lays down the correct law and would need only to be confirmed. The question referred is answered as above and the case is sent back to the Bench which referred the matter, to decide the rest of the issue on facts in accordance with law.
Sd/-
V.K.Bali, Chief Justice.
Sd/-
K.A. Abdul Gafoor, Judge.
Sd/-
Kurian Joseph, Judge.
Sd/-
K. Balakrishnan Nair, Judge.
Sd/-
K. Padmanabhan Nair, Judge.
DK.
(True copy)