AMMINI PANDARATHY v. LEELAMMA — 1977 DIGILAW 110 (KER)

Judgment :- Questions of some importance in the matter of eviction of a tenant for reconstruction of the building under S.11(4)(iv) of the Kerala Buildings (Lease and Rent Control) Act, 1965, for short the Act, arise for consideration in these Civil Revision Petitions. The questions are: (i) Whether the tenant of a residential building can be evicted for reconstructing the same into a non-residential building in view of the right of option for allotment of the reconstructed building the tenant has under the third proviso to S.11(4)(iv) of the Act. (ii) Whether the reconstruction of a residential building into a non-residential one will be hit by the prohibition against conversion of buildings contained in S.17(1) of the Act. (iii) Whether the plan and licence for reconstruction of the building should be thereat the time of filing the petition for eviction itself or it need be made available by the time evidence is taken in the petition, and (iv) Whether in a revision filed against an order for eviction under S.11(4)(iv) of the Act the Revisional Authority can give a direction to the landlord to submit a fresh plan for the reconstruction of the building and uphold the order of eviction on the basis of that direction. The tenants of ten rooms of a residential building bearing separate door numbers situated in the Trichur town who were respondents in RCP. Nos 69, 93, 94, 95,96,97,98,99,100 and 151 of 1969 on the file of the Rent Control Court, Trichur are the petitioners in these Civil Revision Petitions and the respondents the landlords In all the rent control petitions eviction was sought under S.11(2) and (4)(iv) of the Act on the grounds of arrears of rent and reconstruction respectively. In RCP. No. 69 of 1969 a ground of sub-letting under S.11(4)(i) was also taken as, according to the landlord, the tenant to whom the room was originally let out sublet the same and the sub-lessee is residing there and running a tea shop in it. The Rent Control Court by a common order allowed the eviction petitions under S 11(2)(b) of the Act rejecting the other grounds for eviction taken by the landlords. From the above order of the Rent Control Court the landlord filed appeals before the Subordinate Judge, Trichur who is the Appellate Authority under S.18 of the Act. The Rent Control Court by a common order allowed the eviction petitions under S 11(2)(b) of the Act rejecting the other grounds for eviction taken by the landlords. From the above order of the Rent Control Court the landlord filed appeals before the Subordinate Judge, Trichur who is the Appellate Authority under S.18 of the Act. The Appellate Authority found that the landlords bona fide require to reconstruct the building and allowed all the eviction petitions under S.11 (4) (iv) of the Act. In RCP. 69 of 1969 eviction was allowed on the ground of subletting under S.11(4) (i) also. Thereupon, the tenants filed revisions before the District Court, Trichur under S.20 of the Act. The learned District Judge by separate orders dismissed all the revisions by giving a direction to the landlords to re-submit a fresh plan to enable the reconstruction of the building into one with 10 rooms to enable the ten evicted tenants to exercise their option under the third proviso to S 11(4)(iv) of the Act. As per the approved plan the building was to be reconstructed into one with eight rooms only. The tenants challenge the above orders in revision passed by the learned District Judge in these Civil Revision Petitions. 2. Learned counsel for the revision petitioners contends that under S.11(4)(iv) of the Act a tenant of a residential building cannot be evicted for reconstructing the same into a non-residential building. According to the learned counsel, if that is possible, provisos 1 to 3 of S.11(4)(iv) will become meaningless. Learned counsel points out that the clear indication in the above provisos is that the evicted tenant should have the first option for the allotment of the reconstructed building and that the reconstruction should be completed within the time fixed for the same and the tenant should be put back in possession with the least possible delay. Learned counsel contends that the chances of reoccupation of the tenant cannot be defeated by the landlord by reconstructing the building into a non-residential one. Learned counsel relies on B. Mohanbhai v. M S U Mandir (AIR. 1975 SC. 2128) and contends that a landlord should not be allowed to circumvent the provisions of the Act by getting an order of eviction. Learned counsel relies on B. Mohanbhai v. M S U Mandir (AIR. 1975 SC. 2128) and contends that a landlord should not be allowed to circumvent the provisions of the Act by getting an order of eviction. In the above case, a landlord wanted the eviction of a tenant of a residential building on the ground that he wanted the same for certain non-residential purposes. The Court said that allowing the eviction will, in effect, be allowing the landlord to circumvent the provisions of S.25 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 under which a landlord cannot convert the user of the premises from a residential to a non-residential purpose. Learned counsel points out that in the case of an eviction under S.11(4)(iv) of the Act even though the tenant is dispossessed, his right to get back into possession is kept in tact and the landlord can let it out to another only if the tenant does not want to reoccupy the building. Learn d counsel then contends that the reconstruction of a residential building into a non-residential one will be a conversion which is prohibited under S.17(1) of the Act. According to the learned counsel, under S.17(1) not only the tenant but the landlord is also prohibited from converting a residential building into a non-residential one or vice-versa. It is pointed out that the result of the orders of the courts below will be that a non-residential building will come into existence in the place where there existed a residential building The next contention of the learned counsel is that as per S.11 (4) (iv) of the Act the plan and licence for the reconstruction of the building must be there when the landlord files the petition for eviction and, in this case, since they were obtained by the landlord only at the time of evidence in the case the eviction petitions ought to have been dismissed on that ground alone. In this connection, reference is made to Hameed v. Ittoop (1970 KLT 501) a Full Bench decision of this Court under the third proviso to S.11 (3) of the Act. Learned counsel then points out that the Revisional Authority went wrong in giving a direction to the landlord to submit a revised plan providing 10 rooms in the building to be reconstructed. Learned counsel then points out that the Revisional Authority went wrong in giving a direction to the landlord to submit a revised plan providing 10 rooms in the building to be reconstructed. According to the learned counsel, the directions that can be issued under the second proviso to S.11 (4) (iv) of the Act have nothing to do with the plan of the building to be put up. Learned counsel points out that the proviso itself comes into play only after the eviction of the tenant under S.11 (4) (iv) of the Act and when the landlord does not complete the reconstruction within the time fixed in the order of eviction or the extension of time given by the Rent Control Court thereafter, 3. Learned counsel fair the respondent-landlords contends that under S.11 (4) (iv) of the Act, if the court finds that the landlord bona fide requires to reconstruct the building it cannot be insisted that a residential building can be reconstructed only as a residential building and a non-residential building can be reconstructed only as a non-residential one According to the learned counsel, it is immaterial whether after reconstruction the building is suitable for occupation for the tenant who was evicted under S.11 (4) (iv) of the Act. Learned counsel points out that what the third proviso to S 11 (4) (iv) insists is that if the tenant wants the reconstructed building, he will have the first priority for allotment. Learned counsel refers to Kailiani v Madhavi (1970 KLT. 257) and contends that the social purpose of the provisions is to remove the roadblocks in the way of progress in building programmes, In the above decision it is further said that 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. Learned counsel also points out that in the above decision it is said: "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 in the mind of the landlord to reconstruct. It is impossible, therefore, to hold that the investigation by the controller should be confined only to the existence of an intention in the mind of the landlord to reconstruct. This intention must be honestly held in relation to the surrounding circumstances." In this connection, reference is also made to Porinchu v. Ouseph (1971 KLT. 571) wherein it is said: "So also the desire of the landlord to put the property to a more profitable use after demolition and reconstruction is also a factor that may be taken into account in favour of the landlord. It is not necessary that the landlord should go further and establish that the condition of the building is such that it requires immediate demolition." According to the learned counsel, reconstruction contemplated in S.11 (4) (iv) can be by demolishing the old building and putting up a new one in its place or demolishing the old building in part and making additions to the same. It is then pointed out that, at any rate, in a case like this where the reconstruction is to be by demolishing the existing building no restriction that the new construction should also be a residential one can be there. Learned counsel then refers to S.17 of the Act and contends that the restriction imposed by S.17 (1) against conversion of the buildings is on the tenants and the section has no application in the case of a reconstruction under S.11 (4) (iv) by the landlord. According to the learned counsel, the proviso to S.17 (I) makes it clear that the section applies only to a conversion by the tenant inoccupation. As far as the plan and licence for the reconstruction are concerned, learned counsel points out that S 11 (4) (iv) does not insist thai they should be ready at the time of filing the application for eviction. According to the counsel, what clause (iv) insists is that the landlord should satisfy the court that be has the plan and licence, if any, required. So, it is enough if the plan and licence are there at the time when evidence is taken and, in this case, admittedly, they were ready when evidence was taken. It is further pointed out that the decision in Hemeed v. Ittoop (1970 KLT. So, it is enough if the plan and licence are there at the time when evidence is taken and, in this case, admittedly, they were ready when evidence was taken. It is further pointed out that the decision in Hemeed v. Ittoop (1970 KLT. 501) on the third proviso to S 11 (3) of the Act is not applicable because of the difference in the wording of the above proviso and S.11 (4) (iv). Referring to the direction for the submission of a fresh plan by the learned District Judge in revision under S.20 of the Act learned counsel submits that under the second proviso to S.11(4) (iv) the court has power to issue directions regarding the reconstruction at any time. So, the Revisional Authority has not in any way acted without jurisdiction in issuing the above direction. Learned counsel then contends that, at any rate, this Court cannot interfere with the eviction ordered by the learned District Judge in revision under S.115 of the Code of Civil Procedure because the finding on the question of bona fide requirement in a finding on a question of fact. In support of this contention, learned counsel refers to Sarada v. Kumaran (1969 KLT. 133) wherein it is said: "The decision of the District Judge about the applicability of S.11(3) of the Buildings (Lease and Rent) Control Act 2 of 1965, is a question within its jurisdiction and not on a question pertaining to the exercise of jurisdiction to try a petition for eviction. A decision on the applicability of S H (3) has therefore no relation to the question of jurisdiction contemplated by S.115, C P C." Learned counsel also relies on Mattulal v. Radhelal ( (1974) US C. W. R.215) wherein Bhagwati J. speaking for the Court has said: "The question of bona fide requirement is purely a question of fact and not a mixed question of fact and law." Learned counsel further points out that a question of law which has a nexus to the jurisdiction only can be raised in a Civil Revision Petition filed under S.115 of the Code of Civil Procedure. 4. 4. Learned counsel for the revision petitioners in his reply points out that the option provided for the tenant in the third proviso to S.11 (4) (iv) is a real right conferred upon him to get an allotment of the reconstructed house for the reconstruction of which he was evicted under S.11(4)(iv). Learned counsel refers to Mitra's Legal and Commercial Dictionary wherein rely ing on the House of Lords' decision in Reardon Smith Line Ltd. v. Ministry of Agriculture, Fisheries and Food ( (1963) I All. E. R 545) it is said: "Option in its widest interpretation means simply choice or freedom of choice. An obligation in a contract can frequently be performed in a large number of ways and the party under obligation can choose any one of the ways he likes. There is, however, a narrower sense in which the word can be used and that is to confer a right of choice specially granted to the holder of the option and to be used solely for his own benefit. It is in this sense that the word is generally used in the business world." Learned counsel refers to the second proviso to S.11(4)(iv) which provides for the award of damages to the evicted tenant for the excess rent he has to pay for another building he is occupying because of the delay of the landlord to complete the reconstruction and contends that the clear intention in S.11 (4)(iv) is that the evicted tenant should be put back into possession of the reconstructed building. According to the learned counsel, this is possible only if by reconstruction a residential or a non-residential building does not undergo a conversion Learned counsel then contends that this Court has jurisdiction to interfere with the orders of the learned District Judge because the learned District Judge has gone wrong in not exercising his jurisdiction to interfere with a wrong and illegal order passed by the Appellate Authority under S.17 of the Act which resulted in the eviction of the petitioners tenants. It is further pointed out that if S.11(4) (iv) is read as a whole in the case of a residential building, eviction cannot be ordered for the reconstruction of the same into a non-residential one. It is further pointed out that if S.11(4) (iv) is read as a whole in the case of a residential building, eviction cannot be ordered for the reconstruction of the same into a non-residential one. The Appellate Authority went wrong in overlooking this aspect of the matter and the learned District Judge who heard the revisions was bound to interfere in exercise of his revisional jurisdiction to vacate the eviction order passed by the Appellate Authority. Referring to the direction made by the learned District Judge for the re-submission of the plan, learned counsel contends that as the second proviso to S.11(4)(iv) can only apply to a case where the tenant has been evicted under S.11(4)(iv) and the landlord fails to carry out the reconstruction the above direction is clearly without jurisdiction. 5. S.11(4) (iv) of the Kerala Buildings (Lease and Rent Control) Act, 2 2 of 1965 reads: "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) …. (ii) …. (iii) ... 5. S.11(4) (iv) of the Kerala Buildings (Lease and Rent Control) Act, 2 2 of 1965 reads: "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) …. (ii) …. (iii) ... (iv) if the building is in such a condition that it needs reconstruction and if the landlord requires bona fide to reconstruct the same and if he satisfies the Court that he has the plan and license, 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 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; or (v) ... S.17(1) of the Act reads: "17. (1) No residential building shall be converted into a non-residential building or vice versa and no such building shall be divided into separate portions for letting on rent or for other purposes except with the permission in writing of the Accommodation Controller: Provided that where such conversion involves structural alteration of the building, the consent of the landlord shall also be necessary." A citizen who owns a building becomes a landlord when he lets out the same to another and the latter becomes the tenant. Thereafter, the rights and liabilities of the landlord and the tenant are governed by the statute which is applicable. Thereafter, the rights and liabilities of the landlord and the tenant are governed by the statute which is applicable. If the building is situated in an area where the Kerala Buildings (Lease and Rent Control) Act 2 of 1965 is made applicable and it the building is one which is not exempted under S.2 (25) of the Act, the parties are governed by that Act. In other cases, it is the Transfer of Property Act, 1882 under which the rights and liabilities of the landlord and the tenant are to be worked out. The landlord can evict the tenant only in accordance with the Kerala Buildings (Lease and Rent Control) Act as, in this case, admittedly the building is situated in the Trichur Municipal town where the Act has been brought into force. S.11 (4) (iv) of the Act provides for eviction of the tenant when the landlord bona fide requires to reconstruct the same. S 11 (4) (iv), without the provisos, does not give any indication that the landlord who evicts the tenant of a residential building should reconstruct the same only as a residential building. But the three provisos to S.11 (4) (iv) are also to be read along with S. II(4)(iv). It cannot be said that the provisos are silent on this matter. The third proviso says that the evicted tenant shall have the first option for the allotment of the reconstructed building. The first proviso insists that the landlord should reconstruct the building within the time fixed or extended by the Rent Control Court. The second proviso empowers the Rent Control Court to give a direction to the landlord to complete the reconstruction and to put the tenant back in possession This proviso also empowers the Rent Control court to award damages to the tenant who has to suffer the payment of excess rent for occupying another building because of the delay caused by the landlord to reconstruct the building and make it available to the tenant. What a tenant who has been evicted from a residential building wants to get back is a residential building. Under the provisos to S.11(4) (iv) he has got a right to get back the same on payment of its fair rent with the least possible delay. Of course, if the tenant does not want the reconstructed building nobody can compel him to take it. Under the provisos to S.11(4) (iv) he has got a right to get back the same on payment of its fair rent with the least possible delay. Of course, if the tenant does not want the reconstructed building nobody can compel him to take it. The right guaranteed by the provisos to the tenants of the residential building who suffered eviction under S.11 (4) (iv) for reconstruction of the same, to get the reconstructed building is a valuable right and it cannot be defeated by the landlord by reconstructing the building into a non-residential one. By the option provided for by the third proviso, a real right of choice is conferred upon the tenant. So, if, as per the plan and licence produced by the landlord, the residential building from which the tenant is sought to be evicted is going to be reconstructed as a non-residential one as in this case, the Rent Control Court cannot under S.11(4) (iv) put the landlord in possession of the building It cannot be forgotten that under S 11(4) (iv) the landlord cannot say good by to the tenant once for all if the tenant wants to have him as his landlord after the reconstruction of the building. S.17 (1) does not have anything to do with the reconstruction of a building by the landlord. S.17(1) only provides for certain safeguards against conversion of a residential building into a non-residential one or vice-versa by a tenant. This is also clear from the proviso to S.17(1). Under S 1 (4)(iv), as far as the plan and licence of the reconstruction, the landlord has got a liability to satisfy the Rent Control Court that he has already obtained the same. Then the question is whether at the time of filing the petition for eviction itself he should have them ready with him. Going by the section this is not necessary. Even if the landlord obtains the plan and licence during the pendency of the petition for eviction if he has got the same at the time of evidence he can satisfy the court that is only what is insisted by the section. So, the mere fact that the plan and licence were obtained only after the filing of the petition for eviction cannot be a reason not to grant eviction under S.11(4) (iv). So, the mere fact that the plan and licence were obtained only after the filing of the petition for eviction cannot be a reason not to grant eviction under S.11(4) (iv). Then the further question is whether the court can give any direction to the landlord to alter the plan under the second proviso to S.11 (4) (iv) in a revision filed against the eviction ordered by the Rent Control Court. The second proviso comes into play only after the eviction of the tenant and when the landlord does not make the reconstruction within the time allowed by the Rent Control Court. In this case, eviction has not taken place and hence no direction under the second proviso is possible. Not only that, the Court which is competent to give the direction under this proviso is the Rent Control Court and not, at any rate, the Court which hears a revision against an order of eviction under S.11 (4) (iv). So, it goes without saying that the direction given by the learned District Judge to the landlords to re-submit a fresh plan in the orders disposing of the revisions is clearly without jurisdiction. It is true that a finding on the question of bona fide requirement is a finding on a question of fact. The Appellate Authority could not order question of a tenant of a residential building for reconstruction of the same into a non-residential one. In that case, the learned District Judge was bound to exercise his revisional jurisdiction to set aside the eviction ordered by the Appellate Authority when the tenants questioned the eviction orders in revisions before him. As the learned District Judge has chosen not to interfere with the eviction ordered by the Appellate Authority this is a clear case of non-exercise of jurisdiction by the learned District Judge. Not only that, the direction for submission of a fresh plan given by the learned District Judge is not one which he can give under the second proviso to S.11 (4) (iv). In that respect also, the learned District Judge has acted without jurisdiction So, this Court is not lacking in jurisdiction to interfere in these Civil Revision Petitions. 6. For the reasons stated above, the eviction ordered under S.11 (4) (iv) of the Act by the Appellate Authority is set aside in all the cases. In that respect also, the learned District Judge has acted without jurisdiction So, this Court is not lacking in jurisdiction to interfere in these Civil Revision Petitions. 6. For the reasons stated above, the eviction ordered under S.11 (4) (iv) of the Act by the Appellate Authority is set aside in all the cases. In R.C.P. No. 69 of 1969 the eviction ordered under S.11(4) (i) of the Act by the Appellate Authority on the ground of subletting is not interfered with. 7. In the result, Civil Revision Petitions Nos. 2294, 2310, 2334, 2335, 2336, 2337, 2338, 2339 and 2345 of 1976 are allowed and the orders of eviction against the petitioners tenants will stand vacated. In CRP. No 2333 of 1976 the order of eviction under S 11(4) (i) will stand. The Civil Revision Petitions are disposed of as above. There will be no order as to costs. Allowed.