Varghese Mathews Vs. Fakir Rawther Abdul Razack Rawther - Court Judgment

Excerpt:
tenancy - eviction - section 11 (3) and 11 (4) of kerala buildings (lease and rent control) act, 1959 and section 115 of code of civil procedure, 1908 - revision petition seeking eviction of tenants on ground of bona fide need - perusal of facts leads that appellant's contention for bona fide need for reconstruction to run restaurant not reasonable - evidence adduced does not justifies claims of appellant - revision petition dismissed. - - i will first take up his contention that the appellate authority as well as the revisional court ought to have found that he was entitled to seek eviction under section 11 (3) of the act. there is no scope to interfere with the findings reached by the appellate authority as well as the revisional authority in a revision under section 115 of the.....orderp. subramonian poti, ag. c.j. 1. these revisions are against orders of the addl. district judge, mavelikkara in 6 revision petitions under section 20 of the buildings (lease and rent control) act (hereinafter referred to as the act) disposed of by a common order covering these and some other cases. the revision petitioner in all these cases is the same. he is the landlord of a building. respondents in these cases are tenants occupying various rooms of the building on rent. the revision petitioner, as landlord, sought surrender of those rooms. the respondents did not surrender. the petitioner moved petitions before the rent control court seeking eviction of the tenants. in all these petitions he alleged as grounds for eviction, (1) arrears of rent (2) bona fide need of the petitioner.....

Judgment:
ORDER

P. Subramonian Poti, Ag. C.J.

1. These revisions are against orders of the Addl. District Judge, Mavelikkara in 6 revision petitions under Section 20 of the Buildings (Lease and Rent Control) Act (hereinafter referred to as the Act) disposed of by a common order covering these and some other cases. The revision petitioner in all these cases is the same. He is the landlord of a building. Respondents in these cases are tenants occupying various rooms of the building on rent. The revision petitioner, as landlord, sought surrender of those rooms. The respondents did not surrender. The petitioner moved petitions before the Rent Control Court seeking eviction of the tenants. In all these petitions he alleged as grounds for eviction, (1) arrears of rent (2) bona fide need of the petitioner for occupation of the building and (3) requirement of the building for the purpose of reconstruction. The Court is no longer concerned with the first of these pleas. The plea with regard to bona fide need was that, the petitioner, after eviction of the tenants, proposed to reconstruct the building so that he could run a restaurant therein. The plea of requirement for reconstruction was sought to fee justified by reference to various facts such as the age of the building, the fact that it was out of date in the Pandalam town in which it was situate and there was need for constructing a modern building suitable to such an important locality.

2. The Rent Control Court ordered eviction accepting the ground of bana fide need of the building for occupation of the petitioner, a ground fatting under Section 11 (3) of the Act and also on the ground of requirement of the building for reconstruction, falling within Section, 11 (4) (iv) of the Act. The tenants filed appeals before the appellate authority. The appellate authority accepted their case that bona fide need of the petitioner had not been shown. The court particularly took notice of the fact that the petitioner was advanced in age, evidently suggesting that if so his plea that he wanted the building for reconstruction so as to run a restaurant would not be honest. The appellate court further found that the petitioner did not mention this as a ground in the petition and, if this idea was in this petitioner's mind at the tune the petition was drafted it would have been so mentioned, it is apparent that the appellate court did not accept the case of bona fide need of the building for the petitioner's occupation. It agreed with the Rent Control Court that the building needed reconstruction and on that ground the petitioner was entitled to seek eviction. Revisions were taken to the District Court. The tenants filed revision petitions before the District Court as R. C. R. P. Nos. 2, 3, 4, 5, 6 and 7 of 1972 challenging the finding that the building required re-construction. The landlord filed revision petitions as R. C. R. P. Nos. 8, 9, 10, 11, 12 and 13 of 1972 challenging mainly the directions relating to the manner of construction of new structure and also challenging the finding that eviction under Section 11 (3) of the Act was not to be granted. The revisional court agreed with the view of the appellate court and confirmed its finding that the building was not bona fide needed for the occupation of the petitioner, but the condition of the building was such as to justify the proposal for reconstruction. It upheld the order for eviction under Section 11 (4) (iv) of the Act These orders of the revisional court are challenged by the petitioner, the landlord.

3. Though the prayer for eviction stands allowed the landlord has never-the-less come up in revision because, according to him, he is entitled to an order for eviction on the ground that the landlord needs the building for hisbona fide occupation and that ought to have been found and further that even If eviction was to be ordered under Section 11 (4) (iv) of the Act the appellate court was not competent to impose the condition with regard to the reconstruction of the building and allotment out of the rooms so constructed, accommodation for the six tenants. Memoranda of cross-objections are filed by the respondents in these cases contending that the landlord had not made out any of the grounds urged in the petition and that the finding of the Rent Control Court, appellate authority and the revisional court that the building was in a condition requiring reconstruction was unwarranted.

4. The finding that the building which is situate in an important locality in the Pandalam town, is in need of reconstruction because of its present condition has been uniformly reached by the courts below. This court following the decision of the Supreme Court in Nets Bam v. Jiwan Lal (AIR 1963 SC 499) has held in Kalliani v. Madhavi (1970 Ker LT 257). Saramma Varghese v. George (1971 Ker LT 282 : (AIR 1972 Ker 13); Vareed Porinchu v. Ouseph (1971 Ker LT 571), Arunachalam v. Sreenivasa Reddiar (1977 Ker LT 974) and Church of South India Trust Association v. Ramanathan (1979 Ker LT 397) that it is not merely the physical condition of the building that is the criterion to determine the question of need for reconstruction. Many other considerations must necessarily enter into the determination of the question whether the building is in such a condition as needing reconstruction. The age of the building, its adaptability for current use, the economic viability of keeping the building in the same condition are all matters which may have to be taken into account. The locality in which the building is situate might have become much more important since its construction years earlier and the construction of a new building utilising the ground space to the maximum benefit of the owner may bring in much more advantageous return to him. That may be a ground for seeking eviction for the purpose of reconstruction. But the court has always the duty to see that such a plea is net made merely as a pretext for eviction and that the plea is honest. The limited concept of the dilapidated condition of the building as justifying the desire for reconstruction is not justified by the provision in Section 11 (4) (iv) of the Act. The Rent Control Court, the Appellate Authority and the Revisional Court have all found that in view of the importance of the locality in which the building is situate the existing building called for reconstruction, a finding which is based on the facts available in the case and a finding which is reached on a proper approach to the facts and circumstances of the case. That does not call for interference in revision and therefore the objection to the orders at the instance of the tenants does not call for serious notice.

5. Now I will come to the case of the revision petitioner in these cases. I will first take up his contention that the appellate authority as well as the revisional court ought to have found that he was entitled to seek eviction under Section 11 (3) of the Act. That enables a landlord to seek an order for eviction if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him. The plea here is that the petitioner needed the building bona fide for his own occupation. The appellate authority categorically found against this plea. Taking various circumstances into account the appellate authority found that the alleged need for occupation was not a bona fide one. The revisional court concurred with this after considering the evidence and also considering the approach to the matter by the appellate authority. Despite this being a finding of fact Sri Section Narayanan Poti, learned counsel for the revision petitioner urged that there is scope for interference by this court in revision. One of the grounds mentioned by the appellate authority to find against the plea of bona fide need for own occupation by the landlord was that the appellant was 51 years old when examined and such a person could not suddenly develop an idea to start a hotel business. The revisional court found that this may not be quite right. Of course 51 is not an age when it can be said that a man may not decide upon a new business venture. But that is not the basis on which the appellate authority found absence of bona fides. It considered several other matters and was only incidentally referring to the ageof the appellant at the time he was deposing. The more important circumstance noticed by the Appellate Authority is the fact that when Ext. D-4 notice was issued by the landlord to the tenants prior to the petition there was no mention therein of a proposal to start a restaurant after constructing a new building in place of the old building. It was only mentioned therein that the building was required for the purpose of reconstruction to conduct some trade by the members of his family. As P. W. 3 the landlord explained that two of the sons of his paternal uncle were dependent on him and he wanted to start a business to help them and assist them in the business. The sons of paternal uncle were found to be not the members of the petitioner's family. The circumstance that the landlord demanded enhanced rent in 1973 was noticed and the fact that rent was enhanced in 1975 was also noticed. The disputes in existence between the parties prior to the filing of the petition were also noticed. It is on an appreciation of all these circumstances that the appellate authority found against the landlord on the question of availabiliy of Section 11 (3) to support the plea for eviction. The revisional court also considered these circumstances and in particular the fact that in the notice sent prior to the petition the proposal to start a hotel was not mentioned. It cannot be said that this is an irrelevant circumstance. There is no scope to interfere with the findings reached by the appellate authority as well as the revisional authority in a revision under Section 115 of the Code of Civil Procedure.

6. Now I will come to the question of the attack by the revision petitioner to the order of the revisional court on the ground that certain directions made therein were incompetent, improper and not justified by the provisions of the Act. In fact this is the main controversy in this revision and the one which was argued rather elaborately by learned counsel for the revision petitioner. Before I deal with the question urged by learned counsel before me it would be advantageous to refer to Section 11 (4) (iv) of the Act here :

'11 (4) A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building--

(i) to (iii) :.....

(iv) if the building is in such a condition that it needs reconstruction andif the landlord requires bona fide toreconstruct the same and if he satisfiesthe court that he has the plan andlicence, if any required, and the abilityto rebuild and if the proposal is notmade as a pretext for eviction.

Provided that the landlord who evicts a tenant and does not reconstruct completely the building within a time which may be fixed or extended by the Rent Control Court, shall on a petition before that court be liable to a fine of rupees five hundred, if it is proved that he has wilfully neglected to reconstruct completely the building within such time :

Provided further that the court shall have power at any time to issue directions regarding the reconstruction of the building and on failure of compliance by the landlord to give effect to the order in any manner the court deems fit and in appropriate cases to put the tenant back in possession or award to the evicted tenant damages equal to the excess rent he has to pay for another building that he is occupying in consequence of such eviction :

Provided further that the tenant who was evicted shall have the first option to have the reconstructed building allotted to him with liability to pay its fair rent.'

In order to grant relief under this sub-section it is necessary to find 5 essential requisites and these are, (a) the building is in such a condition that it needs reconstruction, (b) the landlord requires bona fide to reconstruct the same, (c) he satisfies the court that he has the plan and license, if any, required, (d) he satisfies the court of his ability to rebuild and. (e) the proposal is not made as a pretext for eviction. Evidently the Rent Control Court, the APpellate Authority and the Revisional Court have all found that these requisites have been proved. The appellate authority while allowing the plea for eviction directed that. (a) the reconstruction of the building was to be completed within 6 months of the landlord getting possession of all the six rooms concerned in the cases or within such time as may be extended by the Rent Controller and, (b) each of thetenants will have the first option to have a room of an equal extent of space in the reconstructed building allotted to him with liability to pay its fair rent. To regard to the second direction the court save a clarification that it is not accessary that the room should have exactly the same length of road frontage as at present. The appellate authority has incidentally discussed in its judgment the feasibility of making a construction so as to accommodate the tenants in rooms to be constructed therein and also to provide for a restaurant. There was no question of any plan being approved, for the building was situate in a Panchayat area. The appellate authority also noticed that the landlord cannot be compelled to construct a building of any particular type but the construction was to be made so as to secure to the tenants option to occupy rooms more or less of the same advantage. The revisional authority before whom the propriety of this direction was under challenge rightly held that the Rent Control Court cannot dictate in what fashion or in what manner the landlord should reconstruct the building. But in allowing, eviction under Section 11 (4) the Rent Control Court could direct the landlord to accommodate the tenants in the newly constructed building in preference to other tenants. It therefore upheld the directions given by the appellate authority in this regard. It is the propriety of this that is the main subject of challenge in these revisions.

7. According to Sri. S. Narayanan Poti, learned counsel for the revision petitioner the right of a landlord to reconstruct a building cannot be infringed by any condition or direction as to the need for accommodating the tenants after reconstruction. Counsel argues that the right envisaged by the main part of Section 11 (4) (iv) is intended to confer the benefit of availability of the building to the landlord for the purpose of reconstruction and in carrying out such reconstruction it is open to him to plan in a manner that may give him the maximum return. There is to be no limitation in the matter of reconstruction. In support of this it is pointed out that it is well recognised by courts now that it is not the mere age or physical condition of the building that justifies the claim for demolition of anexisting tenanted building so as to enable construction of a new structure in the site but also other factors, the most important of which, according to counsel, is the scope for larger return to the landlord. Counsel argues that this must necessarily mean that it is open to the landlord to conceive of a construction which is economically most advantageous to him and in doing so it may be that he is unable to provide rooms or accommodation identical with or similar to the accommodation the tenants had. Unless there is accommodation corresponding to that from which the tenants have been evicted there could be. according to counsel, no scope for giving option to the tenants as envisaged by the 3rd proviso in the sub-section. According to counsel the obligation of the landlord, if at all, is only to offer the building as reconstructed at a fair rent to the tenant irrespective of its suitability. The provision, it is urged, should not be read so as to cut down the right of the landlord and the right of option conceived by the 3rd proviso must be read only as an option in regard to the building as reconstructed.

8. That reconstruction may be planned by the landlord on the ground that, having due regard to the importance of the locality and the normal profit return that he should get by reason of the importance of the situation of his land, the existing building calls for replacement by a new building is a matter on which there cannot be any controversy. The learned counsel for the revision petitioner has placed reliance on the decision of the Supreme Court in Panchamal Narayan Shenoy v. Venkatesha Shenoy, AIR 1971 SC 942 and Gopalakrishna Chetty v. Ganeshan reported in AIR 1975 SC 1750. This may justify his plea for reconstruction of the building occupied by the tenants in these cases. Will that give him a right to reconstruct a building which does not make any provision for providing the tenants that are evicted A close look at Section 11 (4) (iv) would show that the provisos are not to be read in Isolation and the right to seek eviction for the purpose of reconstruction has to be read in the light of the content of the provisos. The first proviso contemplates that the court could fix a time within which the reconstruction of the building should be completed. It fur-ther contemplates that the Rent Control Court may extend such time. It also contemplates a petition before the Rent Control Court complaining that the landlord had wilfully neglected to reconstruct the building within the time fixed or extended. On such a complaint the court is empowered to impose a fine of Rs. 500/-. The second proviso confers powers on the Rent Control Court to issue directions regarding reconstruction of the building. The landlord is bound to comply with such directions. In case the landlord fails to comply the Rent Control Court is empowered to give effect to the order in any manner it deems fit. One of the modes by which it could enforce its order is to put the tenant back in possession in appropriate cases. This may not be possible in a case where the building has already been demolished and the new construction has either been not begun or it has not been completed. In such a case and in other appropriate cases the Rent Control Court can direct damages to be paid to the tenant. Such damages is to be equal to the excess rent the tenant may have to pay in consequence of the eviction. The 3rd proviso deals with the option to the tenant to have the reconstructed building allotted to him. He has the liability to pay fair rent on such allotment.

9. The background to the right of option under the 3rd proviso is furnished by the provisions in the other two provisos. It cannot be said that the right of option conferred by the Act is to be read as of no consequence. The Rent Control Act envisages a scheme whereby a landlord is entitled to seek eviction on various grounds. As noticed, Section 11 (3) enables him to seek eviction on the ground that he requires the building for his own occupation. The ground envisaged in Section 11 (4) (iv) is distinct from Section 11 (3). Reconstruction may be for various reasons. It cannot be said that securing the maximum profit to the landlord is the main or only objective of Section 11 (4) (iv). It may be possible for a landlord to construct a building making use of the land to the maximum extent possible which may get him a better return than what he would have got otherwise. This promotes the interests of the landlord. This would be advantageous to the tenants and the public also. An appropriate building in an important locality would enhance the importance of the locality. A new construction may give the advantage of better accommodation to the tenant. It is all round advantage that will arise by reason of reconstruction of an existing building to suit the social condition of the locality. The right of option to the tenant secures to him the right to come back to the building after reconstruction. The first proviso to Section 11 (4) is to secure that there is no undue delay in the reconstruction of the building and this is further secured by the more stringent provision in the second proviso. It is not possible, in these circumstances, to say that a court while directing eviction under Section 11 (4) (iv) cannot fix a time limit within which a building is to be reconstructed and direct that in the reconstruct ed building the tenants will have to be provided accommodation.

10. To test the logical validity of the argument of learned counsel for the revision petitioner I put it to him what would happen to the right of option in a case where the landlord constructs a building which was formerly occupied by six tenants so as to provide only for two or 3 in the new building. Who should exercise option in that case and how The option cannot be exercised by all the six tenants nor is there any order in which priority can be given to them. I have not had an answer to this at the bar. Similarly if learned counsel's argument is accepted it may mean that a non-residential building can be converted into a residential building and a residential building could be converted into non-residential building. If the option is to be exercised to the building as constructed this again would render the right of option in the proviso illusory and for all purposes ineffective or inoperative. In fact one of my learned brothers had occasion to consider a similar situation and in the decision in Ammini Pandarathi v. Leelamma, 1977 Ker LT 441 the learned Judge held that an order of eviction of a tenant of a residential building cannot be made for reconstruction of the same into a non-residential one. In the decision in Rt. Rev. Dr. Kuriakose Kunnassery v. Dr. Thomas, 1980 Ker LT 396 a learned Judge of this Court held that the tenant cannot claim that the very portion he was occupying priorto his eviction should be allotted to him. That of course must be so. It is not possible to envisage allotment of an identical space having an identical shape or form. Substantially the tenant must get more or less the game advantages as he had earlier.

11. I do not think that there is any case for interference with the order of the appellate authority as confirmed by the Revisional Court. Even assuming that the question is one which calls for examination I do not think that there is any scope in revision to interfere with the view adopted by the revisional court affirming that of the appellate authority. In this view all the revisions are dismissed. No costs.