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2005 DIGILAW 89 (KER)

Thankamma Mathew v. Ravi Mathew

2005-02-04

K.A.ABDUL GAFOOR, R.BASANT

body2005
Judgment :- Basant, J. The common landlords are the revision petitioners in these petitions. Some of the legal heirs of the deceased tenants are the respondents. These cases have had a chequered history by now; Proceedings commenced as early as in 1967 by the landlords filing applications against all their tenants in a common building under Sections 11 (3) and 11(4)(iv) of the Kerala Building (Lease and Rent Control) Act (herein after referred to as ‘the Act’). Eviction was ordered both under Section 11 (3) and 11 (4) (iv). The tenants preferred appeals before the Appellate Authority. The Appellate Authority confirmed the direction for eviction under Section 11(4)(iv) and set aside the direction under Section 11 (3). Both parties preferred revisions before the District Court, the then revisional authority. The District Court confirmed the order of the Appellate Authority. Thereupon revision petitions were filed before this Court. The order under Section 11(4)(iv) was upheld. Execution was taken out. The order in the execution petition directing surrender was also challenged. To cut a long story short, the surrender of the building was effected by the tenants on 1-8-1991. The landlords effected reconstruction and the reconstruction was completed in 1992. Then started the next phase of litigation. The tenants wanted to be re-inducted into possession. The landlords resisted the claim. The Rent Control Court directed the landlords to put the tenants in to possession under the third proviso to Section 11 (4)(iv). That order was challenged before the Appellate Authority. The Appellate Authority turned down the challenge. It is in these circumstances that the landlords have come up before this Court. 2. We must straight away observe that the respondents are not the original tenants. In one revision petition the respondents are the two sons of the deceased tenant and in the other the litigation has spread over to the next generation. The respondent/tenant is the grandson of the original evicted tenant. 3. Various contentions have been urged. The first contention raised by the learned counsel for the landlords is that the third proviso speaks of the “tenant who was evicted” and that expression cannot include the legal heirs of the deceased evicted tenant. The expression ‘tenant’ is defined in Section 2 (6) of the Act and includes ‘the heir or heirs of a deceased tenant’. The first contention raised by the learned counsel for the landlords is that the third proviso speaks of the “tenant who was evicted” and that expression cannot include the legal heirs of the deceased evicted tenant. The expression ‘tenant’ is defined in Section 2 (6) of the Act and includes ‘the heir or heirs of a deceased tenant’. Going by the definition in Section 2 (6) the expression ‘the tenant who was evicted’ appearing in the third proviso to Section 11 (4) (iv) must necessarily include the heirs of the deceased evicted tenant also. It is true that the definition clause opens with the words “unless the context otherwise requires”. But in the instant case we are satisfied that the expression’ the “tenant who was evicted” appearing in the third proviso to Section 11 (4)(iv) must necessarily take in the heirs of the deceased evicted tenant also. It is true that a Full Bench of this Court in P.M. Narayanan & ors. v. P.K. Shalima (2003 (1) K.L.J. 771) has taken the view that the expression ‘tenant’ in Section 11 (17) cannot include the heirs of a deceased tenant, notwithstanding Section 2(6) of the Act. But that reasoning did appeal to the Full Bench only because of the peculiar nature of the protection granted to a tenant under Section 11 (17). That dictum has obviously no application to the present situation under the third proviso to Section 11(4)(iv). The first contention must therefore fail. 4. Secondly the learned counsel for the landlords contends that the expression ‘the tenant who was evicted’ can take in only a tenant who in obedience to the order under Section 11(4)(iv) has surrendered the building and not one who dragged on the proceedings endlessly and was ultimately constrained in execution proceedings to surrender the building. This question was considered in detail by a Single Judge of this Court in George v. Narayani & ors. (1998 (1) K.L.J. 272) We are in complete agreement with the reasons given by the learned Single Judge. Even the expression ‘the tenant who was evicted’ does not indicate a voluntary surrender and suggests an involuntary surrender in the wake of an order of eviction. (1998 (1) K.L.J. 272) We are in complete agreement with the reasons given by the learned Single Judge. Even the expression ‘the tenant who was evicted’ does not indicate a voluntary surrender and suggests an involuntary surrender in the wake of an order of eviction. The fact that the tenant had surrendered possession only because of execution proceedings taken against him to execute the order of eviction passed under Section 11(4)(iv) cannot in any way be him out of the sweep of the expression ‘the tenant who was evicted’ under the third proviso to Section 11(4)(iv). We affirm the conclusion of the learned Single Judge in the decision referred above. The second contention must also, in these circumstances, fail. 5. The learned counsel for the landlords then contends that the language of the third proviso to Section 11(4)(iv) must necessarily indicate that the court has discretion in the matter of permitting the evicted tenant to exercise his first option. The counsel contends that the re-induction under Section 11(4)(iv) is not automatic and the Legislature had carefully employed the words “the tenant who was evicted shall have the first option to have the reconstructed building allotted to him” and not that “the evicted tenant shall have the reconstructed building allotted to him”. Relying on the language employed in the third proviso the learned counsel builds up an argument that if there are change in circumstances after the surrender of the building it is certainly open to the landlord to contend that the tenant is not entitled to exercise the first option. Advancing the contention further the counsel submits that if even on the date of such re-induction the tenant is liable to surrender possession under any one of the grounds recognized under Section 11, it would be unnecessary and superfluous to re-induct the tenant into possession leaving it to the landlord later to claim eviction on the very same ground. The learned counsel further placed reliance on the decision reported in Ramesh Kumar v. Kesho Ram (AIR 1992 SC 700). He presses into service this dictum to impress upon the Court that the authorities under the Rent Control Legislation must and are obliged to take into account the subsequent changes in circumstances while moulding the relief’s. 6. The learned counsel further placed reliance on the decision reported in Ramesh Kumar v. Kesho Ram (AIR 1992 SC 700). He presses into service this dictum to impress upon the Court that the authorities under the Rent Control Legislation must and are obliged to take into account the subsequent changes in circumstances while moulding the relief’s. 6. The learned counsel for the landlords then contends that the sons or the grandsons of the tenant now do not require the building as they are pursuing other avocations and have other or better buildings in their possession already. There can be no quarrel that the Rent Control Authorities are entitled to take into account the subsequent change in circumstance while considering the nature of the relief to be granted or in moulding the relief. That proposition is now settled beyond controversy. 7. But it must be noted that in order to entitle the evicted tenant to be re-inducted into possession, the law requires only two circumstances to be proved. The first is that the tenant was evicted under an order passed under Section 11(4)(iv) and the second is that the building must have been reconstructed. It is only these two circumstances which are relevant while considering the play of the third proviso to Section 11(4)(iv). The Legislature was careful to stipulate that the evicted tenant will not be merely continuing the earlier tenancy on the same terms. The Legislature has consciously taken note of the fact that the reconstructed building may fetch a higher/reasonable/fair rent. In such a situation the Legislature advisedly thought that it was sufficient that the tenants were given an option. Only if the tenant wants it, need he be re-inducted into possession. This, according to us, is the meaning of the expression “first option” which is conceded to the tenant under Section 11 (4)(iv). The tenant has the first option to claim re-induction into possession, subject, of counsel to the liability to pay rent which is fair. The use of the expression ‘first option’ in the third proviso to Section 11(4)(iv) must, in these circumstances, be understood plainly to mean that it is only a tenant who wants to come back into possession who needs be inducted. This option appears to us to be absolutely reasonable. 8. The use of the expression ‘first option’ in the third proviso to Section 11(4)(iv) must, in these circumstances, be understood plainly to mean that it is only a tenant who wants to come back into possession who needs be inducted. This option appears to us to be absolutely reasonable. 8. What we intend to take note of is that re-induction into possession under the third proviso to Section 11(4)(iv) is not dependant on any other circumstance. If it is not dependant on any other circumstance as is the unavoidable intention conveyed under the third proviso to Section 11(4)(iv) there is no question of the court taking into account any change in circumstances. The argument laboriously built that the change in circumstance must be taken into account cannot be accepted as the exercise of the first option is not dependant on any other circumstance save the two referred above. In these circumstances, the argument that the subsequent change in circumstances can or must be taken into account to deny to the tenant the first option cannot be accepted. 9. Finally the learned counsel for the landlord contends that the authorities erred in not fixing the fair rent which the tenant will be liable to pay on re-induction. The language of the third proviso is unambiguous. The tenant is liable to be re-inducted and he is liable to pay fair rent. 10. The concept of fair rent under the Act is evident from Section 5. In Issac Ninan v. State of Kerala 1995 (2) KLT 848 it was held that the provisions in Sections 5, 6 and 8 of the Act are unconstitutional. Later another Division Bench in Edger Ferns v. Abraham Ittycheria 2004 (1) KLT 767 has reviewed the said decision and it is now laid down beyond doubt that Section 5 (1) is perfectly constitutional and continues on the statute book and is available for enforcement. Fair rent can now be fixed under Section 5 (1). Of course, during the period when Issac Nainan held the field, the Court had to consider whether the fair rent can be fixed by the Rent Control Court de hors the provisions in sections 5, 6 and 8 by invoking the obligation of the tenant to pay fair rent under the third proviso to Section 11(4)(iv). Of course, during the period when Issac Nainan held the field, the Court had to consider whether the fair rent can be fixed by the Rent Control Court de hors the provisions in sections 5, 6 and 8 by invoking the obligation of the tenant to pay fair rent under the third proviso to Section 11(4)(iv). It is by now trite that even in the absence of Sections 5, 6 and 8 fair rent can be fixed by the Rent Control Authorities when it comes to the third proviso to Section 11(4)(iv). It is unnecessary to go into that controversy as Section 5 has been restored to the Statute Book. Whether under Section 5(1) or under the third proviso to Section 11(4)(iv), the Rent Control Authorities are competent to fix fair rent. The fair rent in respect of the reconstructed premises has necessarily got to be fixed by the Rent Control Authorities. If there is no agreement between the parties, either party can approach the Rent Control Court to get the fair rent fixed in accordance with Section 5(1) or under Section 11(4)(iv). That right of the parties cannot be doubted or disputed. 11. The learned counsel for the landlord contends that the parties have not been able to come to an agreement on the quantum of monthly rent which is liable to be paid. He prays that this Court may be pleased to fix such fair rent now and here. We are not inclined to accept that invitation to fix fair rent because we do not have sufficient data. Whether under Section 5(1) or under the 3rd proviso to Section 11(4)(iv), the parties must certainly be given the full opportunity to substantiate their contention as to what fair rent can be fixed. We do not propose to fix any fair rent. But we do find merit in the contention of the learned counsel for the landlords that an undisputable minimum rent can be directed to be paid until the Rent Control Court fixes the fair rent in respect ‘of the reconstructed premises. The learned counsel for the respondent does not also seriously dispute the propriety or justice of such a direction. But again there is a dispute regarding what the said minimum amount should be. 12. The learned counsel for the respondent does not also seriously dispute the propriety or justice of such a direction. But again there is a dispute regarding what the said minimum amount should be. 12. Having considered all the relevant inputs presently available and without in anyway intending to fetter the rights of the contestants to raise all their contentions before the Rent Control Authorities and without in any way trammeling the discretion of the Authorities to fix fair rent, we think it proper to direct that until such fair rent is fixed by the authorities at the instance of either party, rent at the rate of Rs.1,500 per month shall be paid by the respective tenant to the landlord for the reconstructed premises into which they shall be inducted. It is directed that both the tenants herein must be re-inducted into possession within a period of 60 days from this date with liability to pay fair rent, to be fixed by the authorities. Amounts paid as directed in this order if in excess shall be liable to be adjusted. Further amounts, if any, due shall also be paid if a higher fair rent is so fixed. 13. In the result these revision petitions are dismissed, subject to the above observations/directions.