ORDER
K.T. Sankaran, J.
1.The Revision petitioners- tenants challenge the concurrent findings of the Rent Control Court and the Appellate Authority under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as the 'Act').
2. The petition schedule building is a part of a larger building. In a major portion of the main building facing Broadway, Ernakulam, a hotel under the name and style 'Bharat Coffee House' is being run by Gopalakrishna Rao, husband of the first petitioner in the Rent Control Petition. (The parties are referred as in the Rent Control Petition). On either side of the entrance to Bharat Coffee house, a telephone booth and milk booth are being run by petitioners 4 and 5, the daughters-in-law of Gopalakrishna Rao. Petitioners 2 and 3 are the sons of Gopalakrishna Rao. In the petition schedule building, a textile shop under the name and style 'Indian Saree House' is being run by the tenants.
3. The Rent Control Petition was filed under Section 11(2)(b), 11(3), ll(4)(i), ll(4)(ii) and 11(8) of the Act. The Rent Control Petition was allowed only under Section 11(3). The ground under Section 11 (8) was apparently not pressed by the landlord at the time of hearing. It is seen recorded in the order of the Rent Control Court that at the time of arguments, the landlord submitted that 'they are pursuing the remedy under Section 11(3) only'. The other grounds were found against the landlords. Challenging the order of the Rent Control Court, the landlords as well as tenants filed Appeals before the Appellate Authority. The Appeals were dismissed. The appellate judgment is challenged only by the tenants.
4. Sri. S. Sreekumar, learned Counsel for the tenants contended that petitioners 4 and 5 having stated in the Rent Control Petition that they are in occupation of a portion of the entire building, only Section 11(8) applies and not Section 11(3). Though the contention of the tenants in the objection was that petitioners 4 and 5 are not in occupation of any portion of the building, the authorities below found, on analysing the evidence, that they are in such occupation. Therefore, on the basis of this finding, we have to consider this contention raised by the tenants. Sri. K.P.Sreekumar, learned Counsel for the landlords contended that as found by the authorities below, Section 11(3) would apply. He submitted that Section 11 (3) and (8) being mutually exclusive, the landlords did not press the contention under Section 11(8) on the bonafide belief that Section 11(3) would apply.
5. To deal with the above point, it would be convenient to extract Sub-sections(3) and (8) of Section 11 of the Act.
Section 11(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 bonafide needs the building for his own occupation or for the occupation by any member of his family dependent on him.
(provisos omitted)
Section 11(8): A landlord who is occupying only a part of the building, may apply to the Rent Control court for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the landlord in possession thereof, if he requires additional accommodation for his personal use.
6. The first proviso 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. The second proviso to Section 11(3) mandates that the Rent Control Court shall not give any direction 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 such trade or business. The first proviso to Section 11(10) states that 'in the case of an application made under Sub-section(8), the Rent Control Court shall reject the application if it is satisfied that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord.'
7.In Lekshmaha Naikan v. Gopalakrishna Pillai 1981 KLT 167, after noticing that 'a claim for eviction under Section 11(3) and one under Section 11(8) have quite often been wrongly identified in cases that come up before the courts,' Justice Subramonian Poti (as his lordship then was) held as follows:
If the case of the landlord is that he is residing in a part of a building and he requires another part of the building in the occupation of the tenant for his occupation so as to have additional accommodation and not to transplant himself from the portion he is residing to the new portion then the case squarely falls within Section 11(8). If on the other hand a person is occupying a portion of a building, another portion of the building is in the possession of the tenant and he wants that portion as he prefers to occupy that portion of the building and not the one he had been occupying so far it will be a claim that falls under Section 11 (3). That is because in that case the portion, surrender of which is sought is not required as any additional accommodation but as accommodation. There may be many reasons why he may not want to live in that part of the building where he had been living. He may think that it is better to live in the portion in which the tenant is living and if the circumstances are such that it can be said that he bonafide need that portion occupied by the tenant for his occupation in place of the portion which he has been occupying so far, the claim will fall squarely under Section 11 (3). To put it in brief where what is sought to be recovered from the tenant is a portion of a building another portion of which is occupied by the landlord Section 11 (8) would operate only when- but always when- the portion occupied by the tenant is sought for the purpose of additional accommodation for the landlord.
8. In S. Sivasubramonia Iyer v. S.H. Krishnaswamy : AIR1981Ker57 , after holding that Sub-sections (3) and (8) of Section 11 are mutually exclusive, Justice Subramonian Poti (as his Lordship then was) held thus:
In other words, in a case where a landlord is occupying a portion of the whole building and his tenant is occupying the other portion if the landlord seeks additional accommodation for the accommodation of another member of his family depending on him and if what he seeks is possession for the independent occupation of such member, it would be governed by Sub-section(3) of Section 11 and would be decided by the requirements of Section 11(3). If on the other hand, it is otherwise, it will be a case falling within the ambit of Section 11(8). It cannot be an application both under Section 11(3) and 11(8) as the petitioner's counsel represented in this case. It, therefore, follows that the application will have to be considered as an application under Section 11(8) of the Act.
9. In Abdul Rahiman and Ors. v. Ramankutty Moothan 1983 KLT 726, Justice Khalid (as his Lordship then was) relied on the decision in Sivasubramonia Iyer v. Krishnaswamy and held thus:
According to me, Section 11(3), 11(4)(iv)and 11(8) are independent provisions. In all these cases the requirement should be bonafide. But the nature of the requirement in each section is different. In certain cases, the shades of requirement may overlap. But each section operates independent of the other.
10. In Muhammed v. Abdul Rahiman 1983 KLT 874, Justice P.C. Balakrishna Menon (as his Lordship then was) held that Sub-sections (3) and (8) of Section 11 are not mutually exclusive. It was held thus: 'If both the grounds are available to the landlord it is open to him to apply for eviction on either of the grounds or on both. The mere fact that there is a specific provision applicable to a situation where the landlord is in occupation of a part of a building and the remaining portion or part thereof is in the possession of a tenant, does not preclude the landlord from seeking eviction under Sub-section(3) of Section 11 of the Act. It is not a sound principle of statutory construction to place more restrictions on the rights of parties than what is provided for in the statute itself. There is therefore no substance in the plea that for the reason of the landlord's possession of a part of the building, Sub-section(8) excludes the operation of Sub-section(3) of Section 11 of the Act for a landlord to apply for eviction of his tenant.' In this decision, 1981 KLT 167, : AIR1981Ker57 and 1983 KLT 726 were not referred to. However, on facts, it was held that the landlord has not 'occupied' any portion of the building though he got 'possession', and therefore, Section 11 (8) did not apply.
11. A Division Bench of this Court in Arjunan v. Eranu 1991 (2) KLT 279 relied on : AIR1981Ker57 and 1981 KLT 167, though strictly speaking the question whether the above sub sections are mutually exclusive was not considered. Another Division Bench in Pakran v. Kunhiraman Nambiar 2004 (1) KLT 824, relied on 1981 KLT 167 and 1991 (2) KLT 279 and held thus: 'It is now trite that the standards to decide bona fides of a claim under Section 11 (3) and that of a requirement for additional accommodation coming under Section 11(8) are different, the former being more rigorous than the latter. In S.R. Babu v. T.K. Vasudevan and Ors. : AIR2001SC2881 the Supreme Court held thus:
11. A perusal of Sub-section(8) makes it clear that to invoke this sub-section the landlord must show that: (i) he is occupying only a part of the building; (ii) the landlord requires the additional accommodation for his personal use.
12. The foil owing is the distinction between Sub-section(3) and Sub-section(8) of Section 11 of the Act. The former provision applies when the building is wholly occupied by the tenant and the landlord bonafide needs the building for his own occupation or for the occupation by any member of his family dependent on him provided he does not have any building of his own in his possession in the same city, town or village whereas the latter provision applies when a landlord is already in occupation of a portion of the building and needs additional accommodation which the tenant is occupying, for his personal occupation.
13. In the instant case, admittedly, the first respondent is in occupation of a part of a building and the appellant is occupying another part of the building which the first respondent requires as additional accommodation for his personal use. Therefore, this case falls under Sub-section(8) of Section 11 and not under Sub-section(3) of Section 11 of the Act.
12. In view of the Supreme Court decision in S.R. Babu 's case and the principles laid down in the abovementioned decisions (except 1983 KLT 874), we are not inclined to accept the view taken by the authorities below that Section 11(3) applies in the present case. Admittedly, petitioners 4 and 5 in the Rent Control Petition are in occupation of a portion of the whole building (or larger building). They do not want to vacate it and shift that business to the tenanted premises. They want to expand their business activities and for that purpose, the tenanted portion of the building is also required. Therefore, their requirement does not satisfy the ingredients of the expression 'bonafide needs the building for his own occupation' under Section 11(3). On the other hand, the claim comes within the meaning of the expression 'he requires additional accommodation for his personal use'. The need for additional accommodation shall be for the 'personal use' of the landlord. Of course, personal use includes use by the members of the landlord's family. At the same time, if the need for personal use is only for the members of the family of the landlord and it is unconnected with the occupation by the landlord of a portion of the building already in his possession, Section 11 (8) may not apply and such a case would be covered by Section 11(3). The ingredients of Sub-sections(3) and (8) are distinct and different. They are mutually exclusive. Of course, some of the matters to be proved in order to get an order either under sub Clause (3) or Sub-clause (8) of Section 11 are common. The landlord has to prove that the claim is bona fide in both these situations. If the claim is not proved to be bonafide, it shall be rejected as provided under Section 11 (10) of the Act. The first proviso to Section 11 (3) deprives the landlord to get an order for eviction if he 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 special reasons exist. Such a condition is absent in the case of Section 11(8). Even if the landlord has another building, it may not have any relevance in an application under Section 11(8). In an application under Section 11 (8), the landlord need not prove any special reasons as provided in the first proviso to Section 11(3). Ownership and possession of the landlord in respect of another building is irrelevant in deciding an application of Section 11 (8), except, probably, in deciding the comparative hardship under the proviso to Section 11 (10), that too, depending upon the facts and circumstances of the case. The second proviso to Section 11 (3) mandates that no order under Section 11 (3) shall be passed in favour of the landlord if the tenant is depending for his livelihood mainly on the income derived from any trade or business carried in the building and if there is no other suitable building available in the locality for the tenant to carry on such trade or business. These requirements are absent in Section 11 (8). So also, such protection is not available to a tenant against whom an application under Section 11(8) is filed. The first proviso to Section 11(10) states that the Rent Control Court shall reject the application under Section 11(8) if it is satisfied that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord. The facts constituting the ingredients of the second proviso to Section 11(3) may be relevant in certain cases coming under Section 11(8) only for considering the proof or otherwise of the comparative hardship under the first proviso to Section 11(10). The third and fourth proviso to Section 11(3) are also not applicable in the case of an application under Section 11(8). To our mind, the abovementioned items of distinction between Section 11(3) and 11(8) would make it clear that they are mutually exclusive. We are of the view that in the light of the S.R. Babu's case, 2001 (3) KLT 468 (SC) : (2001) 8 SCC 110 and Pakran's case : 2004 (1) KLT 824, the view to the contra taken in Muhammad's case: 1983 KLT 874 does not survive.
13. The above finding would naturally result in allowing the Civil Revision Petition filed by the tenants. Since the landlords apparently did not press the ground under Section 11(8) before the Rent Control Court, it is also possible to dismiss the Rent Control Petition with an observation that the order would not preclude the landlords in filing an application under Section 11(8). But, in view of the fact that both parties understood the contentions of each other in respect of the ground under Section 11(8) and adduced evidence on that basis, we do not propose to dismiss the Rent Control Petition. On the other hand, we propose to examine the case in respect of the ground under Section 11(8) to the extent possible. We allow the landlords to withdraw their submission to confine the case to Section 11(3) only.
14. The business that is proposed to be conducted in the portion of the building occupied by the tenants is not the same business which petitioners 4 and 5 now conduct in the portions of the building in their occupation. The case put forward by the landlords in the Rent Control Petition is this: 'There is dearth of space for conducting these two stalls of the petitioners. Moreover the petitioners wish to expand their business by starting a fast food stall, for which the shop room in the possession of the respondents is highly necessary as additional accommodation and without which the idea of expanding the business will not be fructified.' A question would arise whether the requirement for additional accommodation should be in respect of the same business as being carried on by the landlord in a part of the building or whether any business unconnected with such business could be carried on by the landlord in the building from which the tenant is sought to be evicted. In Davis u Sebastian (1999 (3) KLT 225 (SC) : ((1999) 6 SCC 604) the Supreme Court held as follows:
Now, what is the meaning of the expression 'personal use' in Sub-section(8) It is a well settled principle of interpretation that words in a statute shall be given their natural, ordinary meaning; nothing should be added to them nor should any word be treated as otiose. Two comprehensive expressions 'additional accommodation' and 'personal use' are employed in Sub-section(8). The expression 'additional accommodation' takes in both residential as well as non- residential buildings. 'Personal use' is also an expression of wide amplitude. There is nothing in the subsection which restricts the import of that expression. The said requirement of Sub-section(8) will be complied with on the satisfaction of the Controller about bonafide need of the additional accommodation for personal use of the landlord. To what use the additional accommodation should be put, is the choice of the landlord. In the case of a non-residential building whether a new business should be set up in the additional accommodation or whether it should be used for expansion of the existing business, is left entirely to the option of the landlord. This being the intendment of the legislature, the Court cannot impose any restriction with regard to the use of the additional accommodation from which the eviction of the tenant is sought.
this Court followed the above decision in Joseph v. Rent Controller 2001 (2) KLT 538. In S.R. Babu v. T.K. Vasudevan and Ors. : AIR2001SC2881 , the Supreme Court held:
In our view, once it is held that the landlord requires additional accommodation for his personal use, he is entitled to utilize it to best suit his requirement. The condition in which the additional accommodation is to be used by the landlord cannot be dictated by the tenant.
In view of the above authoritative pronouncements, it cannot be said that Section 11(8) is not attracted when the business proposed to be conducted in the additional accommodation sought to be gained is different from the business which the landlords at present carry on in a part of the building.
15. It is contended on behalf of the tenants that the first floor of the building is lying vacant. Sri. S. Sreekumar, learned Counsel points out that this fact was not disclosed in the Rent Control Petition and some explanation was sought to be made by the landlords in their reply statement. He contended that there is no provision for receiving a reply statement in a Rent Control Proceedings. It was also contended that the report submitted by the Advocate Commissioner, wherein it is stated that the first floor is suitable for the proposed business, was not properly considered by the authorities below. The expert, (Retired Deputy Chief Engineer of the Public Works Department) in his report stated that the first floor is not suitable for the fast food restaurant. He stated that a kitchen cannot be housed in the first floor since the flooring is wooden and since the building is very old. The counsel for the petitioner submitted that the authorities below were not justified in relying on the report of the expert ignoring the report submitted by the Advocate Commissioner.
16. Sri. K.P.Sreekumar, learned Counsel for the landlords submitted that reply statement is admissible and that there is sufficient pleadings in respect of the special reason under the first proviso to Section 11(3). The tenants filed objections to the report submitted by the expert only after commencement of the oral evidence. He pointed out that the Commissioner who was examined as P.W 3 stated in categorical terms that she has no difference of opinion in respect of the matters stated by the expert. R.W 1, the tenant stated in evidence that at no point of time, the landlord demanded higher rent.
17. Both the authorities found on facts that the need put forward for conducting the business by the landlords is genuine. Whether it is under Section 11(3) or under Section 11(8), the bona fide need is established. On a consideration of the pleadings and evidence, we also concur with the findings of the authorities below that the need put forward is bona fide. The question whether the first floor is available for use is not quite relevant when we consider the ground for eviction under Section 11(8). However, we hasten to add that the findings of the Rent Control Court and Appellate Authority that the first floor is not suitable for conducting the fast food restaurant is sound and just. The authorities below were justified in relying on the report of the expert, particularly when the Advocate Commissioner stated in clear terms in her evidence that she has no difference of opinion with respect to the matters stated by the expert. Report by an expert commissioner, who is an expert in a particular field should ordinarily be given more credence than the report of an Advocate Commissioner who is not an expert in that field.
18. The contention raised by the tenants that the reply statement should not have been relied on is also without substance. It is true that there is no provision in the Act enabling the petitioner to file a reply statement. There is also no provision in the Act enabling the respondent to file a counter statement. That does not mean that the respondent in a Rent Control Petition cannot file a counter statement. There is no case for the tenants that they were prejudiced in any manner since the reply statement was filed. In the reply statement, the landlords contended that the first floor of the building is not suitable for running a fast food restaurant. Anyhow, this does not assume importance since the application or otherwise of the first proviso to Section 11(3) need not be considered, in view of the findings rendered above.
19. So far as the plea of the tenant under the 2nd proviso to Section 11(3), we are of the view that that there is no ground to interfere with that finding under Section 20 of the Act. The finding on that aspect is a finding of fact. The authorities below have considered the availability of the 2nd proviso on the basis of the evidence and record and held against the tenants.
20. Though we have held that the landlords have established bona fides and it applies to Section 11(8) as well, it is relevant to note that the authorities below have not considered the question whether the hardship which may be caused to the tenant by granting the application will outweigh the advantage to the landlord. This question was not considered because the ground under Section 11(8) was not pressed. Since we have held that the application is to be considered under Section 11(8), it is mandatory to consider this question of comparative hardship under the first proviso to Section 11(10). We are of the view that the parties are to be given an opportunity to adduce evidence on this aspect. However, we do not think that the case is to be remanded to the Rent Control Court. It would be sufficient to remand the case to the Appellate Authority for that purpose.
21. In the result, we hold that Section 11(3) has no application in the case and that the application merits consideration under Section 11 (8). The Appellate Authority shall consider the question of comparative hardship under the first proviso to Section 11(10) in the light of the findings rendered above. The parties are at liberty to adduce such other evidence on that aspect alone. The Appellate Authority shall dispose of the Appeal within a period of six months from the date of receipt of a copy of this judgment. The parties shall appear before the Appellate Authority on 30-6-2006.
The Rent Control Revision is disposed of as above.