K. Gopalakrishnan vs K. Maqbool Sha on 20 August, 2019

[Cites 13, Cited by 3]

Kerala High Court

K. Gopalakrishnan vs K. Maqbool Sha on 20 August, 2019

Equivalent citations: AIRONLINE 2019 KER 878, (2019) 4 KER LJ 602 2019 (4) KLT SN 9 (KER), 2019 (4) KLT SN 9 (KER)

This revision petition is at the instance of the respondent/tenant in Rent Control (O.P.) No.4 of 2012 before the Rent Control Court, Punalur who was ordered to be evicted in a petition filed by the landlord, who is the respondent herein. Grounds of eviction urged are under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (In short, "the Act"). Parties are hereinafter referred to as the landlord and tenant for clarity.

2. Bare minimum pleadings required for our purpose are as follows: Shoproom described in the petition schedule belonged to the landlord's father and on his death, his legal heirs entered into a registered partition vide document No.4455 of 2008 of SRO, Punalur. It is the definite case that in the partition, the petition schedule room was set apart to the landlord. Petition schedule room was let out to the tenant in the year 1982 fixing a monthly rent of `900/-. Tenant is conducting a cycle shop in the room. Landlord is a chartered accountant by profession and he runs a firm by name K.Maqbool Shah & Company for the past several years in an old R.C.R.No.351 of 2018 4 building on the rear side of the petition schedule room. Landlord wanted to construct a new building by demolishing the old building occupied by him on the hind side of the petition schedule room. He also proposed to demolish the petition schedule room for the purpose of facilitating direct access from Quilon-Chenkotta road to his office. Ext.A2 series are the building permit and plan. Landlord completed construction of the building based on an understanding with the tenant that in order to gain direct road frontage to the newly constructed building and for entrance from the main road the tenant would vacate the petition schedule room as and when the new building was constructed. However, the tenant reneged and did not vacate the premises. Hence the eviction petition is filed on the aforementioned grounds. It is also seen that Ext.A7 notice was issued to the tenant before filing the eviction petition.

3. Tenant filed a counter statement contending that the bonafide need set up is untrue. Identity of the buildings and land is also disputed. It is his case that in 1982, the landlord's predecessor approached the tenant informing him that they intend to construct a building and sought financial help from the tenant for the construction assuring that the tenant could continue in the building for rent without fixing any term. It is therefore contended that the tenant has a permanent tenancy in respect of the building. According to the tenant's version, a sum of `65,000/- was given by him to the landlord's predecessor for the building construction. Therefore he is not liable to be evicted. The tenant conducts a shop in the petition R.C.R.No.351 of 2018 5 schedule room and he was also dealing with plumbing and electrical items. Later, he stopped the plumbing and electrical items business to facilitate free access to the building owned by the landlord on the rear side. Landlord demolished his family house on the backside of the petition schedule room and constructed a substantial building. Access to the building is from MLA road situated on the southern side of the property. He constructed a concrete bridge across a water channel lying in between his property and MLA road. Landlord's claim that he needed eviction of the petition schedule room for demolishing it for providing access to the new building is without any bonafides. It is only a ruse to evict the tenant. There is no necessity to demolish the building for gaining direct access to the newly constructed building. The tenant is living on the income derived from the trade in the petition schedule room. No suitable building is available in the locality.

4. Trial court examined five witnesses on the side of the landlord and two on the side of the tenant. Exts.A1 to A21 series are the documents relied on by the landlord and Exts.B1 to B5 series are the documents relied on by the tenant. Exts.C1, C1(a) and C1(b) are the commissioner's report and sketch.

5. After considering the evidence, the Rent Control Court allowed eviction under Section 11(3) of the Act. Aggrieved by that finding the tenant approached the Rent Control Appellate Authority (Additional District Judge- VI), Kollam with R.C.A.No.9 of 2017. After reconsidering the entire evidence the lower appellate court agreed with the trial court and confirmed the order R.C.R.No.351 of 2018 6 of eviction. Hence this revision at the instance of the tenant.

6. Heard the learned counsel for the revision petitioner/tenant and the respondent/landlord.

7. Significance of the word "occupation" of tenanted premises in the context of Section 13 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 was examined by a three Judge Bench of the Supreme Court in R.P.Mehta v. I.A.Sheth (AIR 1964 SC 1676). It is held thus:

"'Occupation' of the premises in cl.(g) does not necessarily refer to occupation as residence. The owner can occupy a place by making use of it in any manner. In a case like the present, if the plaintiffs on getting possession start their work of demolition within the prescribed period, they would have occupied the premises in order to erect a building fit for their occupation."

The proposition, under Section 11(3) of the Act the bonafide need of the landlord need not be for retaining and using the tenanted premises after getting evicted is well settled. Need of the landlord to provide a passage through the land after demolishing the tenanted structure is also covered by Section 11(3) of the Act. The word "occupation" occurring in Section 11(3) of the Act has been interpreted in that manner by this Court in many decisions. First decision on the point is Sarada v. Kumaran (1969 KLT

133) wherein a learned single Judge observed thus:

"An order for eviction under S.11(17) against a tenant in occupation from the particular date mentioned therein is limited only where the landlord wants the use of R.C.R.No.351 of 2018 7 the building for residential purposes. The limitations imposed by S.11(17) of the Act are absent in S.11(3) thereof. It is not necessary to attract S.11(3) that a building used by the tenant for residential purposes should after recovery under S.11(3) of the Act be used by the land lord only for residential purpose and vice versa. Under S.11(3) a bonafide need of the landlord need not be of the identical building as the purpose of the occupation is immaterial. If occupation by a landlord in the re-constructed building after demolishing the existing building is sufficient ground within the meaning of S.11(3) the question would arise whether the need to provide a passage through the site on which the original 'structure stood after its demolition will attract S.11(3). The word 'occupation' does not necessarily refer to occupation as residence. An owner can occupy a place by making use of it in any manner. The fact that the pathway is intended for the customers of the landlord to go to the lodging house and a restaurant belonging to him does not mean that the landlord will not be in occupation of the same. The term 'building' generally, though not always, implies the idea of a habitation for the permanent use of man, or an erection connected with his permanent use. It imports tangibility, and may include the land on which it stands, as well as adjacent land. The definition of the term building under the Act is not precise and an exhaustive definition of the term is also not possible. The meaning of the word 'building' "in ordinary language, comprises not only the fabric of the building, but the land upon which it stands.'' The landlord for the purposes of the pathway is only going to demolish the superstructure or the edifice enclosing the space. The pathway will be enclosed on the R.C.R.No.351 of 2018 8 sides by the walls and the pathway which was part of the building will become part of the lodging houses to be constructed by him. Thus it will be a building itself as defined under S.2(1) of the Act. The conversion of the existing building into a pathway for the use of the landlord is a need covered by S.11(3) of the Act."

This principle has been restated in Krishna Menon v. District Judge (1988 (1) KLT 131) by another learned single Judge. Again it has been reaffirmed by Division Benches in Daniel v. M.G.George (1993 (2) KLJ 686) and George Pylee v. K.K.Sabu (2007 (3) KLJ 407). In George Pylee, it was held that "occupation of the building" contemplated under Section 11(3) of the Act includes occupation of the space occupied by it. It was held that eviction sought for demolition of a building occupied by a tenant for using as a vehicle parking place for a multi-storied building is a bonafide need of the landlord.

8. The Supreme Court in Kunhamma v. Akkali Purushothaman (2007 (3) KLT 599), while interpreting Section 11(3) of the Act, has clearly held that personal necessity envisaged under the Act would include re- possession of the demised premises by landlord for the purpose of its demolition so as to widen the entrance to another building belonging to the landlord in the immediate vicinity. Therefore, the principle that a landlord can secure eviction of a tenant under Section 11(3) of the Act to demolish an existing structure for providing a pathway to a property or building of his own falls within the ground under Section 11(3) of the Act is no more res integra.

R.C.R.No.351 of 2018 9

9. Learned counsel for the tenant contended that there is no bonafides in the need put forwarded by the landlord and it is evident, according to him, from the materials on record. In Ext.A7 lawyer notice, it is pointed out by the learned counsel, the landlord has not mentioned his bonafide need to demolish the rented building so as to have a direct road frontage and entrance from the main road. In the petition, the landlord has modified his case by saying that eviction is required to demolish the building for facilitating direct access from Quilon-Chenkotta road. It is also pointed out by the learned counsel that the landlord has falsely pleaded in the petition that it was a statutory requirement for the landlord to dismantle the petition schedule building for getting the plan approved for the newly constructed building. In this context, we were taken through Ext.A2 building permit and plan. It is argued on behalf of the tenant on the basis of this document that the landlord has an access from MLA road on the southern side. It is further pointed out that when the landlord was examined as PW1, he again modified his case by saying that demolition of the tenanted structure is required for gaining direct access from the main road as well as for providing a parking space. Learned counsel for the tenant therefore contended that the prevaricating stand taken by the landlord would show that need put forwarded is not bonafide.

10. Per contra, learned counsel for the landlord contended that there is no deviation in his case at any point in time. Landlord's versions in the lawyer notice, pleadings and evidence remain the same. According to R.C.R.No.351 of 2018 10 the learned counsel, the landlord need not have sent a notice before seeking eviction under Section 11(3) of the Act. Still, in order to avoid any possible dispute he put the tenant on notice by sending Ext.A7 lawyer notice. It is also pointed out that merely because the entire details are not mentioned in Ext.A7, it cannot be said that the landlord has deviated from his intention for seeking eviction. In the petition, he has mentioned further details to justify his claim. At the time of examination as PW1, he only stated that his clients and others coming to his office can have a direct access from the public road on the northern side and they can also park vehicles in front of his office building. For this purpose demolition of the existing structure is essential. It is also pointed out that there is a narrow passage originating from the Quilon-Chenkotta main road and going down towards the southern side. It has come out in evidence that the Quilon- Chenkotta main road is on the northern side of the total property and it goes in a higher level. It is also borne out from the commissioner's report and photographs that the passage is going down from the road towards south reaching the ground floor of the newly constructed building lying at a lower level than the road. According to the landlord, a person coming to his office has to go down through the narrow passage and then climb up through a staircase to reach his office situated at the road level. In order to avoid this difficulty, he wanted eviction of the room so as to demolish it. Authorities below appreciated oral and documentary evidence correctly and entered a finding that the need set up is bonafide. Factually, we find no reason to R.C.R.No.351 of 2018 11 interfere with the finding of the authorities below that the bonafide need has been established by the landlord since the findings are founded on reliable evidence in the case.

11. Learned counsel for the tenant strongly relied on the decision in George Thomas v. T.N.Menon (2011 (1) KLT 266) to contend that the landlord legally could not have claimed eviction in the facts and circumstances of this case merely by resting a claim on Section 11(3) of the Act and he should have claimed eviction under Section 11(4)(iv) of the Act also. According to him, the pleadings in the case would not justify a claim of eviction confined to Section 11(3) of the Act. In order to buttress this contention, he pointed out that the landlord has constructed a building on the backside of the tenanted premises not for his exclusive use. Admittedly, there was an old residential building which was demolished by the landlord and in its space, a new building has been constructed. Originally he had a plan to construct a residential building-cum-office area. Later, landlord abandoned that idea and constructed a substantial building with his office space and another portion to be let out. It is an admitted case that branch of a bank is now functioning in one portion of the building newly constructed by the landlord. It is therefore argued by the learned counsel for the tenant that the landlord should have claimed eviction under Section 11(4)(iv) of the Act also. To substantiate his argument, a passage from George Thomas's case is relied on:

"On a comparative reading of Ss.11(3) and 11 (4)(iv), we find that to entitle eviction under S.11(3), there shall be R.C.R.No.351 of 2018 12 bona fide need for own occupation of the landlord or for the occupation by any members of his family dependent on him. To entitle eviction under S.11(4)(iv), there need only bona fide requirement for reconstruction. Bona fide occupation can also be after reconstruction. But, if the landlord has no intention to occupy the entire reconstructed area, the eviction has to be sought under S.11(4)(iv). Legislative intention discernible from the above provisions is that after reconstruction in the event there is space available for lease the evicted tenant has got the first option, of course with liability to pay fair rent. In the proposed construction as per Ext.A7, as mentioned earlier, there is space available for letting. In that event, we find that the respondents are entitled to get an order of eviction only under S.11(4)(iv) and not under S.11(3)."

12. On the basis of the above decision, it was argued that as the landlord had no intention to occupy the entire reconstructed area, he should have sought eviction under Section 11(4)(iv) of the Act as well and the tenant would have been entitled to get a suitable room in the reconstructed building. In order to defeat his right, the landlord has claimed eviction only under Section 11(3) of the Act.

13. Learned counsel for the landlord strongly opposed this contention and argued that principles in George Thomas's case go against various other decisions rendered by Division Benches and therefore, it can be confined to the facts in that case only. Relying on a decision in Narayanankutty v. Abiida Abdul Kareem (2002 (2) KLT 507) it is contended that another Division Bench had clearly held that eviction sought R.C.R.No.351 of 2018 13 for by a landlord of tenanted premises so as to use it as a pathway for the proposed multi-storied building will come within the scope of Section 11(3) and not under Section 11(4)(iv) of the Act. The point decided reads thus:

"The expression "unless the context otherwise requires" as well as the term "means and includes" in the definition clause require elucidation. The use of the word "means" shows that the definition is hard and fast definition and that no other meaning can be assigned to the expression than it in the definition. S. 2(1) however uses the expression "means and includes". Though we have mentioned that the word means as such is restrictive since the Legislature used the expression "includes" also, it enlarges the scope of the definition clause. The word "includes" is generally used in the interpretation clause for enlarging the meaning in the body of the statute. Legislature uses the word "means" wherein it is intended that while the term defined should retain its ordinary meaning, its scope should be widened by specific enumeration of certain matters which is the ordinary meaning may or may not comprise so as to include definition enumerative. A reading of S. 11(3) with the definition clause in S. 2(1) would show that tenanted premises as well as the garden, grounds, wells, tanks and structures, if any, appurtenant to such building, hut, or part of such building or hut etc. would come within the scope of S. 11(3).

The expression "occupation" has to be given a wider meaning. It is true that after the tenanted premises is vacated, landlord if bona fide needs the building he can occupy it or a person depending upon him as the case R.C.R.No.351 of 2018 14 may be. The question is whether he can occupy the same tenanted premises once the premises is required for a passage to the newly constructed building. It is physically impossible to occupy the tenanted premises on its demolition since the area is to be used as a passage. Passage to newly constructed building could be used not only by the landlord but the public at large who come to the newly constructed building. One cannot expect the landlord or dependent alone is in occupation of the area left as a passage after demolition of the tenanted premises. The word "occupation" has got different shades of meaning. Chambers 20th Century Dictionary gives the meaning of "occupation" as the act of occupying, state of being employed or occupied, that which occupies or takes up one's attention. Landlord can also occupy passage leading to the building which is appurtenant. The purpose projected in this case by the landlord is bona fide. What is required is demolition of the tenanted premises so as to use it as a passage to the newly constructed building. That means, on demolition the premises is not in exclusive occupation of the landlord but could be used by others as well. The need projected by the landlord comes under S. 11(3) and not under S. 11(4)(iv). S.11(4)(iv) would apply only in cases where landlord bona fide requires eviction of the tenanted premises so as to construct a building in the premises where the tenanted premises situate."

It is also pointed out that this binding precedent was not considered in George Thomas's case.

14. Learned counsel for the respondent pointed out that an unreported decision in R.C.Rev. No.183 of 2009 rendered by a Division R.C.R.No.351 of 2018 15 Bench on 22.08.2012 has taken a different view after considering the ratio in George Thomas's case. That was also a case wherein eviction of the tenanted premises was sought for the purpose of demolishing the building for providing a parking space for a multi-storied building that was constructed by the landlords behind the tenanted premises. It was contended that the landlords should have filed eviction petition under Section 11(4)(iv) of the Act, instead of filing it under Section 11(3) thereof. That contention was examined and in that context, ratio in George Thomas was also considered. It is observed thus:

"We are aware that in George Thomas v. T.N.Menon (2011 (1) KLT 266), another Division Bench of this Court, to which one of us, namely Pius C.Kuriakose, J., was a party has held that where a newly constructed commercial complex behind the tenanted building is meant for the use of many others apart from the landlord, the proper provision under which eviction is to be sought is 11(4)(iv) of the Act. However, we notice that the said decision was rendered in a case where the landlord had entered into an agreement of joint venture with some others to develop the property behind by constructing the multi storied building. Only 40% of the building was given to the landlord while the balance 60% was to be occupied by the builders or sold to others. Therefore, in the said case it has been held that the need projected was not a need of the landlord alone. In the present case, since the building is exclusively owned by the respondents - landlord themselves, the said decision has no application to the facts of the present case."

In the case on our hand, the landlord is seeking eviction of the tenant for his R.C.R.No.351 of 2018 16 purpose. Merely because a portion of the newly constructed building had been let out to a bank it will not take the need set up by him out of the purview of Section 11(3) of the Act. In Parvathy Krishnan v. Joseph Alias Jose (2007 (4) KLT 1062) it has been held affirmatively that if the need put forward is bonafide, mere fact that pathway made after demolition of the building would be used by several persons including landlord or his tenants would not take the need out of purview of Section 11(3) of the Act. Hence we find the observations in George Thomas cannot influence the decision in this case. On an analysis of the factual and legal positions borne out from the records, we find no legal infirmity in the order of eviction concurrently passed by the authorities below.

15. The authorities below have examined availability of the second proviso to Section 11(3) of the Act to the benefit of the tenant and found that he has not established both the limbs in that proviso. Keeping in mind the scope of interference possible in a revision of this nature and on a close examination, we do not find any illegality or impropriety in the approach by the authorities below. We find no merit in the revision petition.

In the result, the revision petition is dismissed confirming the concurrent findings of the authorities below. However, the tenant is given six months time to vacate the building on his fulfilling the following conditions:

(i) Revision petitioner shall file an affidavit before the Rent Control Court, Punalur, within two weeks from today, R.C.R.No.351 of 2018 17 unconditionally undertaking to vacate the petition schedule room without any demur within a period of six months from today.

(ii) He shall clear off all the arrears of rent and shall continue to pay the rent accrued every month until he actually vacates the building.

In case any of the above conditions is breached by the revision petitioner, the execution court is free to execute the order of eviction without regard to the stipulation of time.

All pending interlocutory applications will stand dismissed.

A.HARIPRASAD, JUDGE.

R.NARAYANA PISHARADI, JUDGE.

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