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2004 DIGILAW 251 (KER)

Bobby Cyriac v. Mohamood

2004-06-11

J.M.JAMES, K.S.RADHAKRISHNAN

body2004
Judgment :- K.S. Radhakrishnan, J. Is the tenant obliged to part with possession of the tenanted premises for carrying out the renovation of the building under S.11(5) of Act 2 of 1965 is the question that has come up for consideration in this case. 2. Tenant is occupying the upstair portion of a two storied building. Tenant is conducting a dental clinic. In the ground floor of the building landlord is running a bakery. According to the landlord since the building is very old, it requires immediate repairs and renovation. Further it is also stated that the rafters of the ceiling has already become weak and upstair is now being supported with the help of iron pillars and planks. Rafters of the building is also in a damaged condition. Therefore the building requires renovation. 3. Tenant resisted the petition. According to the tenant no renovation is required. If at all any renovation is necessary the tenant need not surrender possession of the premises to the petitioner. Further it is also stated that the renovation works could be effected without interfering with the enjoyment of the tenanted premises. The Rent Control Court on the basis of the commission report found that the building requires renovation and a direction was given to the tenant to permit the landlord to make necessary arrangements enabling the landlord to carry out the renovation in the petition schedule building. Tenant preferred appeal challenging the order passed by the Rent Control Court permitting the landlord to carry out the renovation. Cross appeal was preferred by the landlord contending that the tenant is bound to surrender vacant possession till renovation work is completed. Appellate authority dismissed the appeal filed by the tenant and allowed the cross appeal and tenant was directed to remove the furniture, equipments and all other materials belonging to him in the premises and hand over possession and key of the premises to the landlord within 15 days. It was ordered that the landlord shall renovate the building within three months from the date of receipt of possession and the landlord was directed to restore possession of the premises to the tenant on the expiry of three months. Counsel appearing for the tenant submitted that the Appellate Authority has committed an error in permitting the landlord to recover possession which is not contemplated in a case of renovation under S.11(5) of the Act. Counsel appearing for the tenant submitted that the Appellate Authority has committed an error in permitting the landlord to recover possession which is not contemplated in a case of renovation under S.11(5) of the Act. Counsel submitted Appellate Authority has not properly appreciated the ruling of this Court in I.L.R. 1964 (Ker.) 254. Counsel further submitted the direction given by the Appellate Court to remove the furniture, equipments and all other materials of tenant from the premises and to hand over possession and key is illegal and not warranted in a petition filed under S.11(5) of the Act. 4. Landlord on the other hand, contended that the tenant was directed to hand over possession only to facilitate the landlord to carry out renovation of the building. Counsel submitted legal possession can still be retained by the tenant. Unless and until the tenant vacates the premises it would not be possible for the landlord to carry out the renovation work. It is for the said purpose that the direction was given by the Appellate Authority. Counsel appearing for the landlord submitted that the landlord is occupying the ground floor of the building. Unless there is proper ceiling it would not be possible for the landlord to carry on his business in the ground floor of the building. 5. The Rent Control Court and the Appellate Authority have freely used the expression'repair' in a petition filed under S.I 1(5). The Rent Control Court and the Appellate Authority is obliged to use the correct legal terminology in their orders. The Rent Control Court was repeatedly using the expression "repair" in an application filed under S. 11(5). In the rent control petition also the expression used is "repair", not renovation. S.11(5) contemplates renovation and not repair. Appellate Authority directed the tenant to remove the furniture, equipments and all other materials belonging' to him in the premises and to hand over possession and 'key of the premises to the landlord. Whether such a procedure is contemplated while passing order under S. 11(5) is the question that is germane for consideration in this case. 6. The words "repair", "renovation" "reconstruction" have got well defined meaning so far as the Rent Control Act is concerned. Renovation means, to renew or make new again, to make as if new, to regenerate etc. Repair means, to make good, to restore etc. 6. The words "repair", "renovation" "reconstruction" have got well defined meaning so far as the Rent Control Act is concerned. Renovation means, to renew or make new again, to make as if new, to regenerate etc. Repair means, to make good, to restore etc. Reconstruction means, to construct again, to rebuild, to remodel etc. Renovation is therefore neither reconstruction nor repair. It only means, to renew or to make new again. S.I 1(4)(iv) deals with "reconstruction" of the buildings. If the building is in such a condition that it needs reconstruction and if the landlord requires bonafide to reconstruct the same he could always approach the Rent Control Court for an order of eviction. S.11(4)(iv) contemplates option to the tenant to have the reconstructed building allotted to him, but the tenant cannot compel the landlord to reconstruct. For reconstruction tenant has to vacate the premises and to surrender possession to the landlord. S.17(2) of the Act deals with periodical maintenance and repairs. Landlord is legally bound to attend to the periodical maintenance and repairs for which there is no question of parting with possession by the tenant. S.11(5) deals with renovation. The tenant cannot compel the landlord to renovate the building. If landlord wants he can renovate the building. Landlord can approach the Rent Control Court for an order directing the tenant to permit the landlord to carry out renovation work and not vice versa. S. 11(5) never says that the tenant should part with possession of the tenanted premises. However, the court may issue such orders "as it deems fit" and the tenant shall be bound to obey the orders of the court. A learned single judge of this Court in Narayanan Nair v. First Additional District Judge, Trivandrum & Ors, ILR 1964 (Ker.) 254 has examined the meaning of the words, repair, renovation and reconstruction in paragraphs 36 and 37 of the judgment. It is stated therein that the renovation of the building which is necessary in the circumstances, as the sub- section contemplates, can only be such as could be done with the tenant continuing in possession of the building. 7. Landlord so as to carry out the renovation work has to enter the premises. The expression enter and carry out renovation requires emphasis. This expression would indicate that possession is still with the tenant and there is no question of parting with possession by the tenant. 7. Landlord so as to carry out the renovation work has to enter the premises. The expression enter and carry out renovation requires emphasis. This expression would indicate that possession is still with the tenant and there is no question of parting with possession by the tenant. While the tenant is in possession the landlord can enter and carry out renovation work with his permission or as permitted by the Court. The court could give appropriate directions depending upon the facts and circumstances of the case. In a given case, for carrying out renovation the tenant need not remove the furniture, equipments etc. but in another case it may be necessary. It is for the Rent Control Court to decide which are the directions to be given creating least inconvenience to the landlord and tenant. In the instant case the tenant is conducting a dental clinic in the upstair portion of the building. Commission report would indicate that renovation work has to be done with regard to ceiling of the building. It is to carry on the renovation work the direction was given by the Appellate Authority to the tenant to remove the furniture, equipments and other materials. It is only to facilitate the landlord to carry out renovation work. We are of the view while carrying out renovation there is no question of parting with possession, but to make it convenient for the landlord to carry out the renovation work. The tenant was directed to remove the furniture, equipments and all other materials to enable the landlord to carry out the renovation work. Tenant can also keep the key with him or hand over the same to the landlord as, and when necessary so that renovation work would be done by the landlord. We therefore hold that in a case under S.11(5) there is no question of parting with possession by the tenant. Possession is to be retained by the tenant and removal of furniture, equipments and all other materials is only to enable the landlord to carry out the renovation work. With the above observation the RCP would stand dismissed.