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1991 DIGILAW 526 (KER)

Jose v. Thomas

1991-12-09

SHAMSUDDIN, THOMAS

body1991
Judgment :- Shamsuddin, J. These Civil Revision Petitions arise out of Rent Control Petitions filed by the respondent herein for eviction of the tenants from the respective petition scheduled premises under Ss.11(2) and 11(4) (iv) of the Kerala Buildings (Lease and Rent Control) Act 1965, which is hereinafter referred to as the 'Act' for short. All the Rent Control Petitions were tried jointly and a common judgment was rendered by the Rent Control Court allowing eviction both under S.11(2) and S.11(4)(iv) of the Act. The appeals filed by the respective tenants were dismissed by the Rent Control appellate Authority confirming the orders passed by the Rent Control Court. These revision petitions have been filed by the respective tenants. 2. Both the Rent Control Court and the appellate Authority found that the tenants have committed default in payment of rent and that the building needs reconstruction and the landlord bona fide required to reconstruct the same. In view of the concurrent findings of the authorities below, the counsel for the petitioners strained very much to convince us that the findings of the courts below are not supported by any legal evidence, but we are satisfied that the above findings are supported by evidence and that the orders do not suffer from any infirmity. We, therefore, affirm the said findings. 3. Relying on a new document, which is produced along with the revision petitions (Order No. PW2-C.A. 337/82-83 dated 29-12-1990 of Municipal Commissioner, Thodupuzha), learned counsel for petitioners contended that the impugned orders are liable to beset aside in view of the provisions contained in S.11(4)(iv) of the Act. By the aforesaid order, the Commissioner of Thodupuzha Municipality declined to renew the licence granted to "the landlord to reconstruct the building. 4. Clause (4) of sub-section (iv) of S.11 lays down that an order of eviction on the ground of bona fide requirement to reconstruct the building can be ordered, if only that the landlord has the plan and licence and ability to rebuild. The contention of the learned counsel is that though initially the petitioner had licence from the Municipality and an approved plan, as the period of licence granted by the Municipality expired and by order of the Municipal Commissioner dated 29-12-1990 the Commissioner declined to renew the licence, the impugned orders allowing eviction for reconstruction are liable to be set aside. 5. 5. Shri. M.V. Joseph, who appeared for the landlord, on the other hand, contended that this ground has not been raised by the landlord before the appellate Authority, and in the circumstances, the petitioners should not be permitted to raise such a contention for the first time in revision. He also submitted that against the order passed by the Commissioner, the landlord has filed an original petition and this court has stayed the operation of the impugned order. The stay granted by this court will not enable the landlord to start the construction as there is no current licence issued by the Municipal Commissioner to start construction. 6. It is not disputed that at the time when the Rent Control Petitions were filed, the landlord had obtained the licence for reconstruction and an approved plan. However, the landlord could not start reconstruction, since the tenants did not voluntarily surrender the premises for enabling the landlord to start reconstruction, and the landlord had to resort to proceedings under S.11 of the Act for eviction of the tenants for the purpose of reconstruction. In the course of proceedings, the tenants raised various objections. Those objections were overruled by the Rent Control Court which was upheld by the appellate Authority. By the time, the landlord obtained orders from Rent Control Court and the appellate Authority, the time granted by the Municipality for reconstruction expired. The landlord applied for renewal of licence, but the Commissioner of Municipality passed the above order declining renewal of licence. The question to be considered in such circumstances, in these revision petitions is whether the orders passed by the Rent Control Court and the appellate Authority ordering eviction for reconstruction are liable to be set aside. 7. Learned counsel for the revision petitioners relied on S.11(4)(iv) of the Act which lays down that the landlord should satisfy the court that he has plan and licence, if any, required and submitted that the existence of a current licence and approved plan is a condition precedent for ordering eviction on the ground of bona fide need for reconstruction and that since the period granted by the Municipality expired and renewal of licence was declined, the petitions for eviction on the ground of reconstruction are liable to be dismissed. 8. 8. If the argument advanced by the learned counsel for the petitioners-tenants is accepted, it would mean that in all cases where the period granted by the Municipality for reconstruction expires, the petition for eviction has to be dismissed unless the landlord was able to get the licence renewed before the expiry of the period even if the Municipality delays the renewal of licence or rejects the application even on unsustainable grounds. In our view, the interpretation suggested by the counsel, if accepted, would defeat the very purpose for which S.11(4)(iv) is enacted. In almost all cases wherein the tenants contest the claim for eviction, the period originally granted by the local authority for construction of building would expire before final disposal of the petition. It is a well known canon of interpretation that the court should adopt an interpretation which would give effect to the purpose of the act and avoid an interpretation which would defeat its object. 9. A similar question arose before one of us (Thomas, J.) in Abdul Khader v. Abdulrahiman Master (1987 (2) KLT 945). It was held therein that when the Rent Control Court or Revisional Authority is satisfied that the landlord has a plan and licence to reconstruct the building, his petition is not to be dismissed on a finding that the period of licence expired during the pendency of proceedings under the Act. The possibility of a contumacious or recalcitrant landlord adopting dilatory tactics and also trying to take advantage of the expiry of the period of licence by refusing to reconstruct the building was noticed by the court, but it was pointed out that the court was not helpless as it has ample power to provide necessary safeguards in the order for protecting the tenant's right of first option to have the building reconstructed allotted to him and that one such safeguard is the power to impose a condition in the order that actual delivery be given to the landlord only if the landlord produces a renewed licence granted by the local authority for the purpose of reconstruction of the building. The law has been correctly stated in the said decision. 10. In Sukumaranv. Additional District Judge (1988 (1) KLT (SN) 30), the landlord had not obtained an order for construction from Greater Cochin Development Authority. The law has been correctly stated in the said decision. 10. In Sukumaranv. Additional District Judge (1988 (1) KLT (SN) 30), the landlord had not obtained an order for construction from Greater Cochin Development Authority. Paripoornan, J. held that strictly speaking the section requires only a plan and a licence, that if licence does not happen to be approved by the Greater Cochin Development Authority, the building cannot be reconstructed and therefore it is sufficient to direct that before execution is taken out, the landlord must produce the approval from G.C.D.A. 11. Learned counsel for the revision petitioner brought to our notice a decision of K.A.Nayar, J. in Kochuvavakunju v. Katherukunju (I.L.R.1991 (3) ker.353). It was held therein that in view of provisions contained in S.11(4)(iv), the landlord must satisfy the court that he has the plan and licence, and that requirement cannot be dispensed with based on decisions rendered under different enactments which do not contain such provision. The above decision is of no help in deciding the question in issue in this case. 12. Having regard to the scheme of the Act and the object of S.11(4)(iv), we have no doubt in our mind that the Act does not contemplate rejection of the petition on the ground that the period of licence granted by the Municipality expired during the pendency of the proceedings. In order to safeguard and protect the interest of the tenant in such cases, the court may incorporate a direction in the order of eviction that actual delivery of possession will be given only when landlord satisfies the execution court that the licence has been renewed or a new licence has been granted by the local authority concerned. 13. For the reasons stated above, we hold that orders for eviction on the ground of reconstruction do not call for interference. However, the orders passed by the courts below under S.11(4)(iv) will not be enforced unless and until the landlord produces either a renewed licence or a new licence granted by the local authority. This would guarantee the right of first option of the tenants to have the rooms in the building reconstructed allotted to them with liability to pay fair rent. 14. This would guarantee the right of first option of the tenants to have the rooms in the building reconstructed allotted to them with liability to pay fair rent. 14. The counsel for the respondent-landlord pointed out that the Rent Control Court has ordered eviction in all these cases under S.11(2) of the Act also on the ground that the tenants committed default in payment of rent and the appellate Authority has upheld the order of eviction on that ground also. Learned counsel for the revision petitioners pointed out that the arrears of rent has already been deposited in the court. It is not necessary, for us to decide that question in this revision petition. We have only considered the maintainability of order of eviction under S.11(4)(iv). 15. The Revision Petitions are disposed of as above. We order that the parties will bear their respective costs.