Meenakshy v. Kamalakshy Amma — 1994 DIGILAW 212 (KER)

Judgment :- Balanarayana Marar, J. Revision Petitioners are tenants of a portion of a building owned by respondents who sought eviction of the premises on the ground of bona fide need and reconstruction. Three petitions had been filed before the Rent Control Court, Ernakulam as R.C.P. Nos. 152 of 1989,155 of 1989 and 158 of 1989 in respect of three rooms in that building. A common order was passed by the Rent Control Court on 19-12-1992 pertaining to R.C.P. 152 of 1989 and 158 of 1989 allowing those petitions under S.11(2)(b),11(3) and 11(4)(iv) of the Rent Control Act. Landlords were directed to reconstruct the whole building within six months from the date of recovery of possession. It is also observed that the tenants shall have the first option to have the reconstructed building except one room allotted to them with liability to pay fair rent. 2. Two appeals were preferred against that order, one by the respondent in R.C.P. No. 152 of 1989 as R.C.A.No.154 of 1992 and the other by respondents in R.C.P. 158 of 1989 as R.C.A.NO.115 of 1992. R.C.A. No. 154 of 1992 was filed out of time and the request for condonation of delay was declined by the order passed in I.A.No.1901 of 1992. In consequence, that appeal was dismissed as barred by limitation. The other appeal, R.C.A. No. 115 of 1992 was considered on merits and the Appellate Authority concurred with the order of the Rent Control Court. It is against that judgment that respondents in R.C.P. No. 158 of 1989 have come up in revision. 3. Heard counsel for revision petitioners. 4. The main argument advanced by Sri. Parameswaran, learned counsel for revision petitioners is that the purpose of the landlords is to construct a non-residential building in the place of a residential building and that should not have been permitted by the authorities below. It is his contention that the building sought to be evicted being a residential one, reconstruction can be sought only for a residential building and not for a non-residential one. Incidentally he would also contend that the authorities below had not applied their minds on the question of denial of title of the petitioners raised in the counter-statement. The benefits claimed by the tenants under the second proviso to S.11(3) of the Act were also not properly considered. Incidentally he would also contend that the authorities below had not applied their minds on the question of denial of title of the petitioners raised in the counter-statement. The benefits claimed by the tenants under the second proviso to S.11(3) of the Act were also not properly considered. An illegality has thus been committed, according to counsel, in the authorities not properly considering the bona fides of the denial of title and the availability of the second proviso to S.11(3) of the Act. 5. When the matter came up for admission on 26-5-194, learned counsel for revision petitioners asserted that the plea of denial of title raised by tenants was not considered by the authorities below. This being a relevant aspect which the Rent Control Court was bound to consider by virtue of the second proviso to S.11(1) of the Act, we called for the records of the lower authorities and the matter again came up before us on the next day by which time the records were received. On a perusal of the written statement filed by revision petitioners it is seen that the contention now advanced by counsel is unsustainable. The averment in the written statement is that petitioners are not the sole owners of the building. It is averred that to the knowledge of the respondents, Narayana Menon to whom the building belonged had left a daughter by name Kunhikavu. She had filed a suit for partition. The contention therefore is that the petition for eviction without impleading Kunhikavu is not maintainable. On a careful reading of paragraph 2 of the written statement, we are not able to find a denial of title of landlord in order to attract the second proviso to S.11(1) of the Act. That the 1st petitioner is the widow of Narayana Menon and 2nd petitioner their son is not disputed in the written statement. The only plea as we could understand is one of maintainability of the petition for non joinder of one Kunhikavu who is alleged to be the daughter of Narayana Menon. It appears that Kunhikavu has filed a suit and the matter is now pending in appeal. Whether she has a right over the building or not, or whether she is a co-owner along with the petitioners in the Rent Control Petition are not matters to be considered in a rent control petition. 6. It appears that Kunhikavu has filed a suit and the matter is now pending in appeal. Whether she has a right over the building or not, or whether she is a co-owner along with the petitioners in the Rent Control Petition are not matters to be considered in a rent control petition. 6. S.11(2) of the Act enables a landlord to seek eviction of the tenant on one or the other of the grounds enumerated therein. Landlord as defined in S.2(3) of the Act includes a person who is receiving or is entitled to receive the rent of a building whether on his own account or on behalf of another or on behalf of himself and others, or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent, if the building were let to a tenant. Petitioners are admittedly the widow and son of the landlord. They are therefore entitled to receive the rent of the building. Even if it be that Kunhikavu is one of the heirs, there is no legal bar in petitioners receiving the rent of the building on behalf of Kunhikavu also. In any case therefore petitioners satisfy the definition of landlord contained in the Act and are therefore competent to maintain a petition for eviction. Furthermore, there is not even a vague plea of denial of title of petitioners in the written statement whereas the plea appears to be one of non joinder of one of the heirs. Such a plea is not entertainable in a rent control petition. In the absence of a plea of denial of title, the authorities below were right in not considering that plea merely on account of the plea of non joinder of Kunhikavu who is alleged to be a daughter of the landlord. No illegality or impropriety has been committed by the authorities below in this regard. 7. The main contention advanced by learned counsel for revision petitioners is that an illegality has been committed by the authorities below in directing the tenants to surrender the building for constructing a non-residential building in the place of a residential one. Counsel argued that the right of the tenants to occupy the reconstructed premises will be denied in case there is a conversion of the building. Counsel argued that the right of the tenants to occupy the reconstructed premises will be denied in case there is a conversion of the building. The provisos to S.11(4)(iv) of the Act, according to counsel, would suggest that the intention of the legislature is to permit landlord to reconstruct the same building and not a conversion. In support of his position counsel relies on the decision in Ammini Pandarathy v. Leelamma (1977 KLT 441). One of the questions which arose for consideration was 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 given to the tenant under the third proviso to S.11(4)(iv) of the Act. The question 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 was also considered by this Court. This Court held that 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, the Rent Control Court cannot under S.11(4)(iv) put the landlord in possession of the building. The right guaranteed by the provisos to the tenants of residential buildings 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. It was further held that S.17(1) does not have anything to do with the reconstruction of a building by the landlord whereas 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. 8. The third proviso to S.11(4)(iv) has granted a right to the tenant of a building to be put back in possession of the reconstructed building with liability to pay fair rent. On a careful reading of the sub-clause and the three provisos contained therein, we do not find any embargo on the right of the landlord to reconstruct a non-residential building in the place of a residential one or a residential building in the place of a non-residential one. On a careful reading of the sub-clause and the three provisos contained therein, we do not find any embargo on the right of the landlord to reconstruct a non-residential building in the place of a residential one or a residential building in the place of a non-residential one. The sub-clause does not prohibit conversion of a residential building into a non-residential one or vice versa. What has to be established by the landlord is that the building is in such a condition that it needs reconstruction and that he has the requisite plan and licence and the ability to rebuild. Landlord has further to establish that the proposal is not made as a pretext for eviction. In other words, the proposal for reconstruction should be a bona fide one. When once the building has been reconstructed, the tenant has the first option to have the reconstructed building allotted to him. re-construction does not mean that the dimension of the new building should be the same as that of the old building. It is also not the intention of the legislature that the reconstruction of the building should be identically at the same place where the building stood. In other words, it is open to the landlord to enlarge the size of the building or to reduce the same depending upon the availability of the land utility to which the reconstructed building can be put and other factors. What has been protected under the third proviso is the right of tenant to have the first option to occupy the reconstructed building. 9. One important aspect that has to be taken note of is that the requirement of the landlord is on two grounds, namely bona fide need and reconstruction Respondents propose to construct a non-residential building to enable the 2nd respondent to conduct vegetable trade therein. This Court in Das Naik v. Narayanan (1980 KLT 951) held that where eviction is ordered both under S.11(3) and 11(4)(iv) it is illegal to give an option to the tenant under the third proviso to S.11(4)(iv) On the basis of the decision in 1977 KLT 441 (supra) and other decisions, a fervent plea was raised before the Court that the rent control enactments should be so interpreted as to benefit the tenants. In particular it was contended that the third proviso to S.11(4)(iv) confers a valuable right to the tenant. In particular it was contended that the third proviso to S.11(4)(iv) confers a valuable right to the tenant. On that plea this court observed thus: "The latter decision of this Court takes the view dial where a landlord proposes to reconstruct a residential building in the place of a non-residential one, no eviction at all could be ordered as its effect would be to deprive the tenant of his option; and if this were to be followed, all that I need do is to set aside the orders of the court below in so far as they relate to eviction Under S.11(4)(iv) leaving the other part in tact. The result would only be deprive the petitioners of many of their other contentions". The Court further observed that there is no embargo in the Act against the landlord demolishing a residential building and constructing a non-residential one in its place. 10. Reverting to the prohibition contained in S.17(1) of the Act against conversion, it was observed that the prohibition in that sub-section is directed against tenants only. It was held that it is also possible to read the sub-section, though couched m negative language, as a provision enabling tenants to make minor alterations to the building let out to them, with the permission of the Accommodation Controller and m spite of landlords' objections, so long as they do not involve structural changes to the building. The purpose of S.17(1) may not be to prohibit anything being done but to permit the doing of something otherwise considered impermissible. Observing that S.17(1) of the Kerala Rent Control Act is dissimilar to the language and content of S.25 of the Bombay Act, it was held that the decision in Bapuba Mohanbai v. Mahila Sahakari Udyog Mandir (1975) 2 SCC 492) is insufficient to whittle down the scope of S.11(3) even if it is assumed that conversion and reconstruction denote the same thing. 11. 'The scope of S.17(1) of the Act had again come up for consideration in Muhammed v. Abdul Rahiman (1983 KLT 874) where also it was held that the prohibition in S.17(1) is directed against the tenants only. It was held that this construction of the sub-section is perfectly in consonance with its proviso, which requires the consent also of the landlord if the conversion involves structural alteration of the building. It was held that this construction of the sub-section is perfectly in consonance with its proviso, which requires the consent also of the landlord if the conversion involves structural alteration of the building. This Court further held that even if the permission of the Accommodation Controller is required, it can only be at the lime when a non-residential building is to be converted into a residential building or vice versa and that S.17(1) is not a bar against the landlord seeking eviction of a non-residential building for his bona tide need of occupation for the purpose of residence. 12. We are in respectful agreement with the views expressed in 1980 K.L.T 951 and 1983 KLT 874. There being no embargo in S.11(4)(iv) of the Act, a landlord is entitled to demolish a residential building and construct a non-residential one or vice versa. More so in a case where eviction order is sought on the ground of personal requirement and that has been found to be genuine. We may not be understood to have held that the landlord has an unlimited right to put up any construction of his choice. We only indicated that there is no embargo in the provision disentitling the landlord to put up a residential building in the place of a non-residential one or vice versa. But the exercise of that right should not deprive the tenant of his valuable right of reoccupation by paying fair rent. That reoccupation can only be to a premises which could he used for the purpose for which the tenant was using it earlier. In other words, the tenant evicted from a residential building should be provided with residential accommodation in the reconstructed building. Similarly the tenant evicted from a non-residential building has to be provided with accommodation for the purpose to which the tenant was using the premises earlier. We make this position clear. 12A. As observed by the Supreme Court in R.P. Mehta v. Sheth ( A.I.R 1964 SC 1676), occupation of the premises does not necessarily refer to occupation as residence and owner can occupy the place by making use of it in any manner. The need of respondents having been found to be genuine and the need being one for doing business in the premises, reconstruction can only be into a non-residential one. The need of respondents having been found to be genuine and the need being one for doing business in the premises, reconstruction can only be into a non-residential one. No illegality or impropriety has therefore been committed by the authorities below in finding the need of the respondents to be genuine and in directing the tenants to put the landlords in possession for the purpose of bona fide occupation and for reconstruction of the building. 13. Though the option given to the tenant under the third proviso to S.11(4)(iv) cannot be exercised in a case where eviction for own occupation was allowed under S.11(3), the landlords in this case wanted only one room for their occupation for the purpose of doing business and had expressed willingness to let out the remaining portions to the tenants in occupation of the buildings earlier. Though a claim for exercise of the option is not sustainable in the present case for the reason mentioned above, the landlords were generous to provide accommodation for the tenants in the reconstructed building. As observed by this Court in 1980 KLT 951 (supra), the contention that no eviction at all could be ordered would deprive the tenants of their valuable right to re-occupy the reconstructed premises which had been granted by the courts below even if it be on the concession made by landlords. The plea of revision petitioners that conversion of the building into a non-residential one cannot be permitted is therefore unsustainable. 14. One more contention raised by learned Counsel for revision petitioners requires consideration. It is argued that the authorities below had not properly considered the claim of tenants to the benefits conferred under the second proviso to S.11(3) of the Act. Though the matter has not been considered in detail by the Appellate Authority, it is observed that the benefits are not available since the building sought to be evicted is a residential one. It is the contention of petitioners that they arc eking out their livelihood by washing clothes and the building is used for that purpose. It is not open to the petitioners to raise that plea since the building is admittedly used for their residence. It is the contention of petitioners that they arc eking out their livelihood by washing clothes and the building is used for that purpose. It is not open to the petitioners to raise that plea since the building is admittedly used for their residence. This Court has held in Parvathy Ammal v. Sankara Menon (1982 KLT 62 ) that the tenant of a residential building will not be entitled to the protection of the second proviso to S.11(3) of the Act even though living there he carries on a trade or business also. The benefits claimed under the second proviso to S.11(3) were rightly denied by the authorities below. 15. The revision is therefore found to be devoid of merit and is dismissed in limine.