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1999 DIGILAW 14 (KER)

Krishnan v. Sukumaran

1999-01-07

P.A.MOHAMMAD, S.KRISHNAN UNNI

body1999
Judgment :- P.A. Mohammed, J. The landlord in a proceeding for eviction of the tenant under the provisions of the Kerala Buildings (Lease & Rent Control) Act, 1965 (for short 'the Act') is the revision petitioner. The revision is directed against the order of the Rent Control Appellate Authority in R.C.A. No.1 of 1989 confirming the order of the Rent Controller disallowing eviction on the ground of reconstruction. 2. The petition for eviction had been filed by the landlord alleging that the petition schedule building was in a dilapidated condition and hence it required to be reconstructed. In the petition for eviction further plea is that the building is located in a busy place where there are buildings of modem type in the surrounding areas and in view of such recent development the petition schedule building required reconstruction. The Rent Controller after evaluating the oral evidence of PW.1 and documentary evidence as per Exts. Al to A8 came to the conclusion that the building requires reconstruction on the ground that new model buildings have come up in the locality. However, the bonafide need claimed by the landlord was doubted and therefore, the eviction was disallowed by the Rent Controller. 3. In appeal under S.18 of the Act the Rent Control Appellate Authority has considered the decisions of this Court in Vareed Porinchu v. Ouseph (1911 KLT 571), Saramma Varghese v. George (1971 KLT 282), Church of South India Trust Association v. Ramanathan (1979 KLT 397) and Balagangadhara Menon v. T. V. Peter (1984 KLT 845). An analysis of the above decisions would bring forth that in a petition under S.11(4)(iv) of the Act the court can have regard to the area where the building is situated, the nature of the developments that are taking place in the locality etc. It is wrong to think that a building needs reconstruction only after it has become irreparable or is about to collapse. It is not the law that the landlord should wait until that stage before he attempts a reconstruction. It is not irrelevant to refer to the local conditions. This in effect is the conclusion arrived at by the Division Bench in Balagangadhara Menon's case (supra). It must be recalled in this context that the decision in Thanka v. Narayani (1981 KLT 502) expressing a narrow view was overruled by the Division Bench in the above case. It is not irrelevant to refer to the local conditions. This in effect is the conclusion arrived at by the Division Bench in Balagangadhara Menon's case (supra). It must be recalled in this context that the decision in Thanka v. Narayani (1981 KLT 502) expressing a narrow view was overruled by the Division Bench in the above case. K.K. Mathew, J. (as the learned judge then was) expressed the view that the court can have regard to the area where the building is situated, the nature of the developments that are taking place in the area etc. (See: Ahammad Kanna v. Muhammed Haneef (1967 KLT 841). In the present case the Appellate Authority found that the building needs reconstruction on account of new developments in the locality and that the petitioner has got means for reconstruction of the same. However, the appeal was dismissed on the ground that the claim for reconstruction is not found to be bonafide. 4. In this revision tiled under S.20 of the Act we are called upon to examine the records so as to satisfy our self as to the legality, regularity or propriety of the order of the Appellate Authority or the proceedings in relation thereto. In this context, it must be noticed that the extent and scope of the revisional power conferred on us under S.20 has been restated in a recent decision of a Division Bench of this Court in Raghavan v. Raju (1998 (2) KLT 394). The relevant portion of the said judgment is extracted hereunder: "Before examining the correctness of the impugned judgment of the Rent Control Appellate Authority, we should remind ourselves of the power conferred on us under S.20 of the Act. The power conferred under the above provision is to call for and examine the records relating to the impugned order for the purpose of satisfying ourselves as to the legality, regularity or propriety of such order. What does it mean? Can we make a re-appraisal of evidence for the purpose of recording an independent finding? No. We cannot do it. The power conferred under the above provision is to call for and examine the records relating to the impugned order for the purpose of satisfying ourselves as to the legality, regularity or propriety of such order. What does it mean? Can we make a re-appraisal of evidence for the purpose of recording an independent finding? No. We cannot do it. What we can do is to have a reappraisal of evidence for the purpose of testing whether the impugned order is not vitiated by anyone of the vices stated in S.20 of the Act; that is to say, whether the order is vitiated for the reason of illegality, irregularity or impropriety." While discussing the revisional jurisdiction of the High Court under the provisions of the Bombay Rents, Hotel and lodging House Rates Control Act, 1947, the Supreme Court in Kanta Udharam Jagasia v. C. K. S. Rao (1998) 1 SCC 403) observed in para 22thus: "It is well settled that though another view is possible on reappreciation of the evidence, the revisional court may not interfere with the findings of the lower courts on that ground." At the same time, it cannot be disregarded that the revisional power conferred on the High Court is essentially a power of superintendence as observed by the Supreme Court in K.A. Anthappai v. C. Ahammed (1992 (2) KLJ 376). While exercising this power the court can. no doubt command the Rent Control Authorities to set right the orders or proceedings if it cannot satisfy itself as to the legality, regularity or propriety of such orders or proceedings. 5. In the aforesaid ambit of the powers we have to decide the question whether the impugned conclusion that the claim for reconstruction is not bonafide, requires correction. no doubt command the Rent Control Authorities to set right the orders or proceedings if it cannot satisfy itself as to the legality, regularity or propriety of such orders or proceedings. 5. In the aforesaid ambit of the powers we have to decide the question whether the impugned conclusion that the claim for reconstruction is not bonafide, requires correction. In this context, it is apt to reproduce S.11(4)(iv) of the Act: "(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 licence, if any required, and the ability to rebuild and if the proposal is not made as a pretext for eviction." (provisos omitted) The requirements to be satisfied by the court for ordering eviction under S.11(4)(iv) are the following: 1) That the building shall be in such a condition that it needs reconstruction; 2) That the landlord requires the building bona fide to reconstruct it; 3) That the landlord has the plan and licence, if any required and the ability to rebuild and 4) That the proposal is not made as a pretext for eviction. There are three provisions to this sub-section which protects the interest of the tenants facing eviction on the ground of reconstruction. Those protections are the following: 1) In case the landlord fails to reconstruct the building completely within the time allowed by the court, he is liable to fine of Rs. 500/- if it is proved that he has wilfully neglected to reconstruct the building completely; 2) 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 such order to put the landlord back in possession in appropriate cases 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 eviction and 3) The evicted tenant shall have the first option to have the reconstructed building allotted to him with the liability to pay its fair rent. 6. In this case, it is an admitted fact that the building is situated in a Panchayat and therefore, no plan and licence are required for the reconstruction of the building. 6. In this case, it is an admitted fact that the building is situated in a Panchayat and therefore, no plan and licence are required for the reconstruction of the building. Likewise it was found by two courts that the landlord had ability to rebuild the building. It is also found that the building requires reconstruction on account of new developments in the area. In the aforesaid situation the court cannot hold that the proposal for eviction is made as a pretext for eviction. Then the claim can only be bonafide. While testing the bonafide the court is also empowered to take note of the second proviso to S.11(4)(iv) of the Act. As aforesaid the said proviso inter alia provides that the court has power in the case of default on the side of the landlord to give effect to the order to put the tenant back in possession or award to the evicted tenant damages. When the reconstruction is aot made within the specified time it may be possible to say that the request of the landlord for eviction is not bona fide. 7. A Division Bench of this Court in Madhavan v. Leelamma (1991 (2) KLT 32) after analysing the earlier decisions of this Court observed: "From the above quote, it is very clear that the correct provision allowing reinduction of the tenant has got very significant and important role to construe the provisions contained in S.11(4)(iv) of the Act." In this context, it would be apt to reproduce the following passage from the decision of the Supreme Curt in Metal-ware & co. v. Bansilal (AIR 1979 SC 1559): "We do not agree that old age and dilapidated condition of the building is a sine quo non or a decisive factor for eviction under S.14(1)(b) nor is it possible to accept the view that the said circumstances is totally irrelevant in pronouncing upon the bona fide requirement of the land lord. v. Bansilal (AIR 1979 SC 1559): "We do not agree that old age and dilapidated condition of the building is a sine quo non or a decisive factor for eviction under S.14(1)(b) nor is it possible to accept the view that the said circumstances is totally irrelevant in pronouncing upon the bona fide requirement of the land lord. We are clearly of the view .that the age and existing condition of the building - whether it is a recent construction or very old and whether it is in a good and sound condition or has become decrepit or dilapidated - are relevant factors forming part of 'all the circumstances' that have to be considered while determining the bonafide requirement of the landlord under S.14(1)(b) of the Act and in the totality of the circumstances these factors may assume lesser or greater significance depending upon whether in the scheme of the concerned enactment there is or there is not a provision for reinduction of the evicted tenant into the new construction. Such a view would be in accord with the main objective of the benign legislation enacted with the avowed intention of giving protection to the tenant." Thus, it is manifest when the court examine the bonafide requirement of the landlord for reconstruction of the building under S.11(4) (iv) of the Kerala Act, the protection given to the tenant under the second proviso to the said section is a relevant consideration which cannot be dispensed with. This aspect of the matter has not been taken into account by the Appellate Authority while considering the question of bonafides of the requirement of the landlord for reconstruction of the building. 8. In view of the above reasons, the conclusion of the appellate authority that the claim put forth by the landlord is not bonafide and it is only a pretext for eviction of the tenant from the petition schedule building is quite illegal, irregular and improper. Accordingly the impugned judgment in so far as it is objected above is set aside. We therefore, direct the Rent Control Appellate Authority to apply the correct legal principles extensively discussed herein above. The Appellate Authority shall take a decision as directed above expeditiously, at any rate, within a period of three months from the date of receipt of a copy of the order. We therefore, direct the Rent Control Appellate Authority to apply the correct legal principles extensively discussed herein above. The Appellate Authority shall take a decision as directed above expeditiously, at any rate, within a period of three months from the date of receipt of a copy of the order. The petitioner as well as the respondents are allowed to produce fresh evidence if any in so far as the point directed to be decided by the Appellate Authority. Both parties are also directed to appear before the Rent Control Appellate Authority on 1.2.1999. The C.R.P. is disposed of as above.