ARUNACHALAM v. SREENIVASA REDDIAR — 1976 DIGILAW 254 (KER)

Judgment :- 1. In this revision petition filed by the landlord in proceedings under the Kerala Buildings (Lease and Rent Control) Act, the question that arises is whether the building is in such a condition that it needs reconstruction and whether the landlord is entitled to get eviction on that ground as he is said to bona fide require the same for reconstruction. The building concerned which is in the occupation of the respondent on a monthly rent of Rs. 200 is situated in an important locality in the Quilon Town The building which was constructed in 19:8 admittedly continues to be a building in good condition and it is not disputed that there is no question of that building being in a physically bad condition as to require reconstruction. The landlord's petition was based on the ground that with the developing nature of the locality with various kinds of commercial activities springing up around the land and the neighbourhood and new buildings coming up, the schedule building has become outmoded. It was alleged that if the petitioner keeps the plot without making any change in the existing structures, that will not give best utility value of the same. He further stated that he intends to put up an ultra modern three storeyed building and has applied to the municipality for necessary licence and he has the necessary means to do so. On these grounds he pleaded that eviction of the tenant is necessary to put the premises into best use. The respondent questioned the bona fides of the landlord. He pointed out that the building is situated in a locality which has not undergone any substantial change for the last so many years and that the building does not require any reconstruction. According to him the eviction petition was the result of a refusal to pay en-chanced rent claimed by the landlord. 2. The Rent Control Court dismissed the application. It would appear that a Commission was taken out in the case. The Commissioner was examined as dw.2. In his report the Commissioner has stated that the disputed building in a pucca juncture and in a fine condition and be could not see any damage in the portion kept by the tenant or by the landlord himself. The Rent Control Court said that from the report it would appear that the building is not a misfit in the locality. The Rent Control Court said that from the report it would appear that the building is not a misfit in the locality. There are older one-storeyed buildings in the locality. The Rent Control Court said: - "No doubt one or two buildings bigger in size have come up in the vicinity. But that alone will not be sufficient to grant an order in favour of the petitioner. If I am to accept bis counsel's view certainly I will have to arise the physical condition of the building from the picture. That is not what is contemplated either by the section or by the decisions The present building is not bad either physically or socially. Considering all these facts I am unable to take the view that the disputed building requires reconstruction in any way. The petitioner has got ample space to put up a new building excluding the site of the schedule building". The Rent Control Court also said that the provocation with led the petitioner to institute the application for eviction was due to the fact that the respondent had paid to the petitioner's father an amount of Rs 5,000 as advance which should have been repaid 'with interest at three per cent after 5 years. Even after the expiry of the period the amount was not so repaid and the respondent threatened the petitioner with legal action for realising the amount. A notice was issued which was marked as Ext. B-2. Though the amount was paid, the tenant's attitude would have induced him to file the present application for getting back the building from the tenant. 3. The appellate authority confirmed the decision of the Rent Controller and dismissed the appeal. There it referred to relevant decisions on the matter and came to the conclusion that it could not be found that the building in such a condition requires reconstruction and the landlord is entitled to get an order for eviction under S.11(4) (iv) of the Lease and Rent Control Act. The matter went up to the District Court in revision under S.20 of the Kerala Buildings (Lease and Rent Control) Act The District Court found that the fact that the landlord has got necessary financial resources to construct an ultra modern three-storeyed building cannot be disputed It also found that he has got the necessary plan requisite for the construction of the building. But the court said that while considering the necessity for reconstruction the present condition of the building is also an important factor for consideration especially in this case where the same tenant was evicted on the same ground only in 1958 and the present petition is filed in 1972 within 14 years. The court proceeded to state: "Fourteen years may on the first blush appear to be a lengthy period and changes may or might not come in a place within this span. But when a landlord evicts a person on the ground of increased commercial importance of a place, all the potential importance, the place may acquire in the near future has to be taken into consideration and the reconstruction must be deemed as having been done considering all the future potential expansions in the place and a tenant cannot be a constant victim of successive evictions on the ground, that the present landlord is having financial resources more than the previous landlords to put up a more prominent building. The present condition of the building is such that it does not require reconstruction. It may be that a little distant from the place another landlord might have put up a three-storeyed building according to bis purse whereas other landlords who made reconstruction in the vicinity had put up only two-storeyed buildings and going by the Commissioner's report all round even now there are dilapidated tiled buildings more than 70 years old which essentially even now require reconstruction. This building where the tenant, the respondent, has been conducting his textile trade for the last 30 to 35 years in the ground floor of the newly constructed building suitable for his textile business and it is admitted that be occupied the newly constructed building after surrendering possession for reconstruction only after paying Rs, 5,000 as advance. The present revision petitioner landlord bad already reconstructed the other portions of this building, a portion of which is in his own occupation, and where he runs the Quilon Radio Service without waiting for the eviction of the present tenant A tenant can be evicted for the purpose of reconstruction of the building where the building is very old and is incongruous with the setting up of building in the neighbourhood. That is not the case here Both the trial court as well as the appellate court have in their well-discussed orders found that the building in the occupation of the tenant does not require reconstruction and as the court sitting in revision I find no ground to interfere with those orders." 4. The order of the Revisional Court is attacked in this court. This Civil Revision Petition is filed under S 115 of the Code of Civil Procedure. Lt is strongly contended for the petitioner by his counsel that though the building in question was reconstructed in 1958, it is situate in a very important locality in the Quilon town where various kinds of commercial activities have sprung up all round the neighbourhood and the schedule building has become very outmoded It is pointed out that the petitioner has obtained the requisite sanction and has the necessary financial resources to construct an ultra modern three-storeyed building. According to the counsel, no dispute as to the financial resources of the landlord was raised. Therefore according to the learned counsel the denial of eviction solely on the ground that the building is not in such a physical condition that it requires demolition and reconstruction is not legally sustainable in the light of the decisions of the Supreme Court and this court. Whether the landlord's requirement is reasonable and bona fide has to be judged by the surrounding circumstances which will include the landlord's means for reconstruction of the building and other steps taken by him in that regard. 5. Whether the landlord's requirement is reasonable and bona fide has to be judged by the surrounding circumstances which will include the landlord's means for reconstruction of the building and other steps taken by him in that regard. 5. The relevant provision in the Act reads as follows: "11(4)(iv): If the building is in such a condition that it needs reconstruction and if the landlord requires bonafide to reconstruct the same and if he satisfies the court that he has the plan and licence, if any required, and the ability to rebuild and if the proposal is not made 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 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 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 onward 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." The first case in which this provision came up for construction is the one reported in Narayanan Nair v. First Additional District Judge, Trivandrum ILR.1964 (1) Kerala 254. There the landlord applied under S.11 (4) (iv) of the Act for possession of the building on the ground of reconstruction. The Rent Controller taking the view that unless the building is in such a dangerous and dilapidated condition, the claim of the landlord cannot be considered as bona fide, refused eviction which order was confirmed in appeal. But in revision the District Judge allowed the revision. The matter was taken up in writ proceedings before the High Court where the tenant sought for cancellation of the revisional order. But in revision the District Judge allowed the revision. The matter was taken up in writ proceedings before the High Court where the tenant sought for cancellation of the revisional order. The main ground taken up was that the revisional authority functioning under S.20 of the Act has got a very limited jurisdiction in entering very minutely and elaborately into the reasons given by the subordinate authorities and in interfering with the findings recorded by them. The petitioner contended that the revisional authority far exceeded his jurisdiction and therefore the order of the revisional authority is absolutely illegal and erroneous. This court pointed out that the revisional jurisdiction under S.20 of the Act (though the proceedings thereunder was under the 1959 Act, the provision was more or less similar to the present Act), is far wider than that under S.115 of the Code of Civil Procedure. It is open to the revisional authority functioning under provisions similar to S.20 of the present Act, to disturb concurrent findings of fact but the requirement is that the revisional authority, must clearly show how exactly the findings of fact arrived at by the subordinate authorities are erroneous. The court further pointed out that if the subordinate authorities have correctly approached the question, a court of revision should be ordinarily slow to interfere with the decision thus reached but it will have jurisdiction to interfere with those findings, if it demonstrates by giving its own decision and reasons about me findings which in its view are improper in any manner. If those conditions are satisfied there is ample jurisdiction in the revisional authority functioning under S.20 of the Act to interfere with findings of fact, though they may be concurrent, either in favour or against a particular party. Then the court went into the question how far the District Court was correct in its approach. In this regard the court said that the location of the building the age of the building, the physical condition of the building and also the developing nature and nature of development of the area where the particular building itself is situated, whether he has got necessary plan and financial ability to rebuild are matters which will have to be taken into account in coming to a conclusion as to whether the claim by the landlord is to be accepted or not. For the petitioners it was contended therein that the only circumstance that should be taken into account in deciding the question of reconstruction is the physical condition of the building and building alone and no other consideration should be taken into account for coming to a conclusion one way or the other. On the other hand the stand taken by the landlord was that a conclusion on the question as to whether a building is in such a condition that it needs construction is to be arrived at, not merely on the basis of looking at the building alone but having due regard to the various other circumstances, namely, the area where the building is situated, the nature of the developments that are taking place in that particular area as well as the nature of construction that is taking place in the area. 6. The same question again came up for consideration before this court in Ahammad Konna v. Muhammed Haneef 1967 KLT. 841. There after referring to the earlier Kerala decision and to the decision of the Supreme Court in Neta Ram v. Jivan Lal AIR 1963 SC. 499 Justice Mathew said that the question as to whether a building is in such a condition as to need reconstruction is to be arrived at not merely looking at the building alone or taking into account the actual physical condition of the building alone but after due regard to the various circumstances, viz., the area where the building is situate, the nature of developments that are taking place and the court has also to satisfy itself as to the genuineness of the claim. The court roust be satisfied about the reality of the claim made by the landlord and this can only be established by looking at all the surrounding circumstances, such as the condition of the building, its situation, the possibility of it being put to a more profitable use after construction, the means of the landlord and so on. The court roust be satisfied about the reality of the claim made by the landlord and this can only be established by looking at all the surrounding circumstances, such as the condition of the building, its situation, the possibility of it being put to a more profitable use after construction, the means of the landlord and so on. It is not enough that, the landlord comes forward, and says that he entertains a particular intention, however strongly such intention is said to be entertained by him The clause speaks not of the bona fides of the landlord, but says, on the other hand, that the claim of the landlord that be requires the building for reconstruction and re-erection must be bona fide, that is to say, honest in the circumstances. It is impossible, therefore, to hold that the investigation should be con lined only to the existence of an intention in the mind of the landlord to reconstruct. The intention must be honestly held in relation to the surrounding circumstances. 7. Justice V. R. Krishan Iyer in Kalliani and others v. Madhavi and others (1970 KLT. 257, again considered the scope and ambit of the provision in S.11(4) (iv) of the Act. There the court pointed out that: "If eviction can be had only on the court being satisfied that the physical condition of the building is on the verge of collapse, there is no doubt that few buildings could be evicted before they have actually collapsed. Knowing the length of time taken in rent control litigation in Kerala, not unusual to find the period between the institution of an application and its ultimate disposal in the revisional court lengthening into several years if a building perilously close to sinking alone can justify a petition under S.11(4) iv) in a State with heavy monsoons, I do not know what purpose would be served by such a course except to endanger the lives of tenants. It is obvious, therefore, that a wider and more realistic meaning must be given to the expression 'condition of the building'. The social purpose of this provision is to remove the road blocks in the way of progress in building programmes. Old structures in newly developing areas may be like pimples on fair faces. It is obvious, therefore, that a wider and more realistic meaning must be given to the expression 'condition of the building'. The social purpose of this provision is to remove the road blocks in the way of progress in building programmes. Old structures in newly developing areas may be like pimples on fair faces. Replacement and renewal of obsolescent and unsightly buildings to make room for larger, modern constructions is a social necessity, provided existing tenants are not thrown into the streets. The condition of the buildings' is a larger concept which includes considerations of social surroundings, and allied factors. Where the buildings is very old and incongruous with the social setting and the surroundings of the place, the court has got to take a more liberal view in applying the provision of law. However the primary purpose of the statute viz., prevention of unreasonable eviction must also inform the court when applying this provision, that is precisely why the statute itself provides that the tenant, if evicted on the ground of need to reconstruct, should be put back in the building, when reconstructed. A blend of the social needs of replacement and renewal and the avoidance of unreasonable eviction is achieved by S.1(4)(iv) in that it provides for eviction when the building is in a physically or socially bad condition. At the same time, the tenant is armed with a right to get back into possession of the premises when rebuilt". For the sake of completeness I should refer also to the decision of the Supreme Court in Neta Rum v. Jivan Lal AIR. 1963 SC. 499. The question that came up for consideration before that court was whether there is a bona fide need to rebuild the premises. The relevant statutory provision in the matter was S.13 of the Patiala and East Punjab States Union Urban Rent Restriction Ordinance. The relevant provision reads as follows: 13 (1) Notwithstanding anything contained in any other law for the time being in force, a tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Ordinance or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of this section. (3) (a) A landlord may apply to the controller for an order directing the tenant to put the Landlord's possession. (iii) In the case of any building, if he requires it for the re creation of that building or for its replacement by another building, or for the erection of other building. (b) The Controller shall, if he is satisfied that the claim of the landlord is bona fide make an order directing the tenant to put the landlord in possession of the building or rented landlord on such date as may be specified by the Controller, and if the Controller is not so satisfied be shall make an order rejecting the application; (4) Where a landlord who has obtained possession of building or rented land in pursuance of an order under sub paragraph (iii) of the aforesaid paragraph (a) put that building to any use or lets it put to any tenant other than the tenant evicted may apply to the controller for an order directing that he shall be restored to possession evicted from it, the tenant who has been evicted may apply to the Controller for an order directing that be shall be restored to possession of such building or rented land and the Collector shall make an order accordingly " Justice Hidayatullah speaking for the court said: "Reading these provisions as a whole, it is obvious that if the landlord's need is genuine and be satisfies the controller, he can obtain possession of the building or the land, as the case may be, if, however he does not re-erect the building and puts it to any other use or lets it out to another tenant, the former tenant can apply to be put back in possession. Clause (b) clearly shows both affirmatively and negatively that the landlord must satisfy the controller about his claim, before be can obtain an order in his favour. The controller has to be satisfied about the genuineness of the claims To reach this conclusion, obviously the controller must be satisfied about the reality of the claim made by the landlord, and this can only be established by looking at all the surrounding circumstances, such as the condition of the building, its situation, the possibility of its being put to a more profitable use after construction, the means of the landlord and so on. It is not enough that the landlord comes forward, and says that he entertains a particular intention, however strongly, said to be entertained by him. The clause speaks not of the bona fides of the landlord, but says, on the other hand, that the claim of the landlord that he requires the building for reconstruction and re-erection must be bona fide, that is to say, honest in the circumstances. It is impossible, therefore, to hold that the investigation by the controller should be confined only to the existence of an intention to reconstruct, in the mind of the landlord. This intention must be honestly held in relation to the surrounding circumstances." In applying this decision to a case arising under the Kerala Act; one will have certainly to take into account the fact that the wording of the Kerala Act where stress is laid on the conditions that the building should be in such a condition that it needs reconstruction. The wording of the statutory provision which came up for consideration in the 1963 Supreme Court case gives wider power to the landlord in the matter of eviction. Therein it is enough if the landlord entertains a bonafide intention for re-erection of the building or its replacement by another building or erection of other building. However that does not mean that under the Kerala Act also in considering the question whether the building is in such a condition that it needs reconstruction one should not look into the other factors apart from the physical condition of the building as pointed out by Justice Mathew in Ahammed Konna V. Mohammed Haneef 196 KLT. 841. The question whether the building is in such a condition that it needs reconstruction has to be arrived at not merely on looking at the building alone or taking into account the actual physical condition of the building alone but due regard must be dad to the other factors such as the nature of the development taking in the area, etc. The physical condition of the building is however an important factor. The physical condition of the building is however an important factor. If the court finds on an assessment of the relevant materials in the case that the building concerned is not only in a good physical condition but also that from the physical condition of the same as well as from its general appearance it cannot be said to be out of tune with the other building in the locality, certainly the court is right in dismissing an application for eviction. It was strongly urged by Sri Nagendran that one will have to take into account the social purpose of the provision which is to remove the road blocks in the way of building programmes. He pointed out the observations of Justice Krishna Iyer in Kalliani and others v. Madhavi and others 1970 KLT. 257 wherein it was pointed out that a wider and more realistic meaning must be given to the expression "condition of the building". The condition of the building is a larger concept which includes considerations of social surroundings and allied factors. Where the building is very old and incongruous with the social se ting and the surroundings of the place the court has got to take a more liberal view in applying the provision of law. But the learned judge pointed out that however, the primary purpose of the statute viz., prevention of unreasonable eviction must also inform the court when applying the provision. His Lordship pointed out that is why the statute itself provides that the tenant if evicted on the ground of need to reconstruct should be put back in the building when reconstructed. His Lordship pointed out allied factors also. The learned judge has pointed out that the primary purpose of the statute is prevention of unreasonable eviction. When the provisions of the statute are clear it will be dangerous to depend on the rather varying principles of social concept for deviating from the language of the statute. One should not forget the difference between the two fulfilling agencies of law, the administrative and judicial branches of Government. In essence and purpose the two functions are fundamentally different and should be so. The executive has to perform while the judiciary has to interpret the law as such. One should not forget the difference between the two fulfilling agencies of law, the administrative and judicial branches of Government. In essence and purpose the two functions are fundamentally different and should be so. The executive has to perform while the judiciary has to interpret the law as such. It is pointed out by Sir Carleton Kemp Alien in "Law and Orders" (3rd Edn.) in rather very forcible language that the "judge has no end to serve except the impartial dispensation of justice' the effect of his decision upon policy or administration while it may be legitimate factor for him to consider, can never outweigh the clear demands of justice. He is, indeed, not concerned immediately with policy at all, but with the rights and wrongs of the dispute of which he in seized. There is such a thing as the "policy of the law", and there is a famous unruly horse called public policy which reflects in the mind and experience of the judge the prevailing standard of mores in the community, and which plays an important part in many branches of the law. There is, further, the "policy" of a statute (once known more broadly as the 'equity' of a statute) a more difficult matter in which, unfortunately, our judicial technique is not uniform. All that need be said about it here is that it is perfectly proper for the judge, in construing a part of an Act, to fit it into the general legislative pattern to interpret the part in the light of the aim or "intendment" of the whole; to try, in other words, to determine and to fulfil the main purpose of the legislator and not to defeat it by a narrow construction of isolated words and phrases. To that extent the judge is, or should be, an instrument to effect governmental policy, whatever his own views about that policy may be. But none of these aspects of the judicial office affects the general principle that the essential function of adjudication is to decide according to law between conflicting contentions. To that extent the judge is, or should be, an instrument to effect governmental policy, whatever his own views about that policy may be. But none of these aspects of the judicial office affects the general principle that the essential function of adjudication is to decide according to law between conflicting contentions. The good judge will do his best to avoid hardship or public inconvenience, but if his decision inevitably involves embarrassment of administrative policy, he is an unjust judge if he shrinks from that consequence." Unless so required by the language in the Act it is not possible for me to accept the learned counsel's contention that the condition of the building should not be taken at all if the landlord establishes his resources in the matter of reconstruction. It has come out in evidence that the building was reconstructed only in 1958 after evicting the tenant who is the present tenant. No doubt he got back into possession by virtue of the provision in the Act. The Commissioner has reported that the building is a two-storeyed one, is substantially a good structure and it does not offend the locality as such. In such circumstances I have no hesitation in upholding the decision of the District Court confirming the decision of the Rent Control Court and the appellate authority. I therefore dismiss the Civil Revision Petition. I make no order as to costs. Dismissed.