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2021 DIGILAW 973 (KER)

Haridasan v. Chandran

2021-10-28

ANIL K.NARENDRAN, P.G.AJITHKUMAR

body2021
ORDER : Anil K. Narendran, J. The petitioners-tenants filed R.C.P.No.86 of 2014 on the file of the Rent Control Court (Munsiff) Vatakara, invoking the 3rd proviso to Section 11(4)(iv) of the Kerala Buildings (Lease and Rent Control) Act, 1965 to re-induct them into the reconstructed building owned by the respondents-landlords herein. That petition ended in dismissal by the order dated 04.02.2017 of the Rent Control Court. Feeling aggrieved, the petitioners-tenants filed R.C.A.No.86 of 2017 before the Rent Control Appellate Authority (Additional District Judge), Vatakara under Section 18(1)(b) of the Act, which also ended in dismissal, thereby confirming the order passed by the Rent Control Court in R.C.P.No.86 of 2014. Feeling aggrieved by the order dated 04.02.2017 of the Rent Control Court in R.C.P.No.86 of 2014 and also the judgment of the Appellate Authority dated 24.06.2019 in R.C.A No.86 of 2017, the petitioners are before this Court in this Rent Control Revision, invoking the revisional jurisdiction under Section 20 of the Act. 2. On 23.07.2021, when this Rent Control Revision came up for admission, this Court issued urgent notice on admission by speed post to the respondents-landlords, returnable within three weeks. 3. Heard the learned counsel for the petitioners and also the learned counsel for the respondents. 4. The issue that arises for consideration in this Rent Control Revision is as to whether any interference is warranted in the order of the Rent Control Court dated 04.02.2017 in R.C.P.No.86 of 2014 and the judgment of the Appellate Authority dated 24.06.2019 in R.C.A.No.86 of 2017, invoking the revisional jurisdiction of this Court under Section 20 of the Act. 5. The pleadings and materials on record would show that the petitioners were tenants of a building owned by the respondents. In the year 2013, due to heavy rain, cracks were developed in the building on its southern wall. Consequently, they were evicted from the premises based on the orders of the Tahasildar and the building was also pulled down by the Tahsildar using earth mover. According to the petitioners they have sent notice to the respondents to reconstruct the building within six months. On receipt of such notice, the respondents approached them and assured that reconstruction of the building can be carried out at the earliest and that, they will be allotted rooms in the reconstructed building for conducting their business. According to the petitioners they have sent notice to the respondents to reconstruct the building within six months. On receipt of such notice, the respondents approached them and assured that reconstruction of the building can be carried out at the earliest and that, they will be allotted rooms in the reconstructed building for conducting their business. On the respondents completing the reconstruction of the 1st floor, the petitioners approached them. However, the respondents refused to re-induct them, as promised. In such circumstances, the petitioners filed R.C.P.No.86 of 2014 before the Rent Control Court, invoking the 3rd proviso to Section 11(4)(iv) of the Act seeking re-induction. 6. The Rent Control Court as well as the Appellate Authority concurrently found that since the eviction of the petitioners from the tenanted premises was not based on an order of eviction passed in a petition filed by the respondents herein under Section 11(4)(iv) of the Act, the 3rd proviso to Section 11(4)(iv) has no application and as such they are not entitled for the relief sought for in R.C.P.No.86 of 2014. 7. The learned counsel for the petitioners-tenants would contend that the 3rd proviso to Section 11(4)(iv) of the Act has application, even in a case in which the tenants are not evicted from the tenanted premises based on an order of eviction passed under Section 11(4)(iv) of the Act. Per contra, the learned counsel for the respondents-landlords would contend that the benefit of the 3rd proviso to Section 11(4)(iv) of the Act can be claimed only by those tenants who have been evicted from the tenanted premises based on an order of eviction passed by the Rent Control Court under Section 11(4)(iv) of the Act. 8. Section 11 of the Act deals with eviction of tenants. As per Section 11(1), notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Act. Section 11(4)(iv) of the Act deals with eviction on the ground of reconstruction. As per Section 11(1), notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Act. Section 11(4)(iv) of the Act deals with eviction on the ground of reconstruction. As per Section 11(4)(iv) of the Act, a landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building, 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. 9. As per the first proviso to Section 11(4)(iv) of the Act, the landlord who evicts a tenant and does not reconstruct completely the building within a time which may be fixed or extended by the Rent Control Court, shall on a petition before that Court be liable to a fine of rupees five hundred, if it is proved that he has wilfully neglected to reconstruct completely the building within such time. As per the second proviso to Section 11(4)(iv), 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 the order in any manner the court deems fit and in appropriate cases to put the tenant back in possession 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 such eviction. As per the third proviso to Section 11(4)(iv), the tenant who was evicted shall have the first option to have the reconstructed building allotted to him with liability to pay its fair rent. 10. As per the third proviso to Section 11(4)(iv), the tenant who was evicted shall have the first option to have the reconstructed building allotted to him with liability to pay its fair rent. 10. In Thankamma Mathew v. Ravi Mathew [ 2005 (4) KLT 859 ] one of the contentions raised before a Division Bench of this Court was 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) of the Act has surrendered the building and not one who dragged on the proceedings endlessly and was ultimately constrained in execution proceedings to surrender the building. The Division Bench noticed that, this question was considered in detail by a learned Single Judge in George v. Narayani [ 1998 (1) KLT 239 ], wherein it was held that, by compelling the landlord to recover possession in execution of the order for eviction, the tenant does not lose his right to have the option to have the reconstructed building allotted to him on fair rent. Since the District Court denied the tenant a right vested in him statutorily and recognised by the very order for eviction on the basis of a ground that is not available under the scheme of the Act, the said court has clearly acted illegally and outside its jurisdiction in interfering with the order of the executing court and denying the tenant the right to have the reconstructed building allotted to him on the ground that the tenant had not complied with the condition imposed by the order for eviction and had not surrendered the old building voluntarily. In Thankamma Mathew the Division Bench agreed with the reasons given by the learned Single Judge in George. The Division Bench held that, 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) of the Act cannot in any way take him out of the sweep of the expression ‘the tenant who was evicted’ under the third proviso to Section 11(4)(iv). 11. 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) of the Act cannot in any way take him out of the sweep of the expression ‘the tenant who was evicted’ under the third proviso to Section 11(4)(iv). 11. In Thankamma Mathew, before the Division Bench, the learned counsel for the landlords contended that the language of the third proviso to Section 11(4)(iv) of the Act must necessarily indicate that the court has a discretion in the matter of permitting the evicted tenant to exercise his ‘first option’. The Division Bench noticed 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) of the Act. 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 is the meaning of the expression ‘first option’, which is conceded to the tenant under Section 11(4)(iv) of the Act. 12. In Narayana Pillai v. Joseph Mathai [ 1992 (2) KLT 454 ], a decision relied on by the learned counsel for the respondents, the order of eviction was sought for under Section 11(4)(iii) and 11(4)(iv) of the Kerala Buildings (Lease and Rent Control) Act. Before any order could be passed by the Rent Control Court under Section 11 of the Act, the building happened to be demolished by the Municipality, in exercise of its powers under Section 250(2) of the Kerala Municipalities Act, 1960. Thereafter a new construction has been put up by the landlords. On the facts of the case on hand, the learned Single Judge noticed that, the structure alone was leased out, not the land underlying it. Thereafter a new construction has been put up by the landlords. On the facts of the case on hand, the learned Single Judge noticed that, the structure alone was leased out, not the land underlying it. When the structure was destroyed, tenant cannot claim any right under the defunct lease. Admittedly, the building which was leased to the tenant was pulled down. On account of the pulling down of the building, the lease was extinguished. Thereafter, no right as lessee of the building, which was pulled down, can be put forward by the petitioner-tenant. The landlords did not get recovery of the building pursuant to an order passed by the Rent Control Court under Section 11(4)(iv) of the Act. By the demolition of the building, the lease was determined. The landlords constructed new building in the property. Thereafter, petitioner-tenant cannot claim any right as a lessee. In such circumstances, the learned Single Judge held that, the claim put forward by the petitioner-tenant invoking the last proviso to Section 11(4)(iv) of the Act is ill conceived. 13. In Kunhabdulla Haji v. Ibrayi [ 1998 (2) KLT 78 ] a learned Single Judge of this Court held that, the subject matter of the lease, or at least the primary subject matter of the lease, namely, the shop room having been destroyed, the tenant could not have used the premises for the purpose for which he took it on tenancy. The tenant had no right on his own to put up a new structure or shop room in the property. When a trader is leased out a shop room in a building having a number of rooms and the said shop room is destroyed either because some act or negligence on the part of the tenant or even vis major, it could only be considered as the destruction of the subject matter of the lease thereby putting an end to the tenancy. Normally in a tenancy of the building what is leased out is the super structure and what is protected by the Rent Control Legislation is also the occupation of the superstructure. Normally in a tenancy of the building what is leased out is the super structure and what is protected by the Rent Control Legislation is also the occupation of the superstructure. To hold that even though the tenant may have no right to put up a construction of his own in the place of the destroyed super structure in the absence of a specific covenant in that behalf in the transaction of lease he could still continue to squat in the property making it impossible for the landlord to construct or reconstruct the destroyed portion would be abhorrent to common sense and the more acceptable approach to the question would be to adopt the view taken by the Division Bench in Sidharthan v. Ramadasan [ 1984 KLT 538 ] that on total destruction of the building the lease would stand extinguished since a demise must have a subject matter and if the subject matter is destroyed the lease comes to an end. 14. In Abdul Khuddus v. H.M Chandiramani (Dead) through L.R.s and others [2021 SCC OnLine SC 714], in the context of Section 21 of the Karnataka Rent Control Act, 1961, which deals with protection of tenants against eviction, Section 27 of the said Act, which deals with the tenant's right to give notice to the landlord of his intention to occupy tenement in new building, Section 108(B) of the Transfer of Property Act, 1882, which deals with rights and liabilities of the lessee, and Section 322 of the Karnataka Municipal Corporations Act, 1976, which deals with precautions in case of dangerous structures, the Apex Court held that, a statutory tenant cannot seek repossession after the demolition of building under Section 108(B)(e) of the Transfer of Property Act as the rights and liabilities of a statutory tenant have to be found under the Rent Act alone. On the facts of the case on hand, the Apex Court noticed that, the petition for eviction filed by the landlord was withdrawn. Since the premises are situated within the urban areas governed by the Rent Act, the tenant has a right to seek possession only in terms of Section 27 of the Act, if the decree for eviction has been passed by a court on the ground specified under clause (j) of the proviso to subsection (1) of Section 21. Since the premises are situated within the urban areas governed by the Rent Act, the tenant has a right to seek possession only in terms of Section 27 of the Act, if the decree for eviction has been passed by a court on the ground specified under clause (j) of the proviso to subsection (1) of Section 21. Even if it is assumed that decree of eviction was passed on the withdrawal of the eviction petition, the tenant has to seek possession of the premises from the date on which he delivered vacant possession of the premises to the landlord. The plaintiff-tenant filed first suit claiming right over the land after demolition of the building but being a statutory tenant, he had to avail the remedy under the Rent Act as the provisions of the Transfer of Property Act are not applicable to the building and land situated within urban area. In view of the provisions of the Rent Act, the terms of the Transfer of Property Act cannot be applied for in respect of statutory tenants. The High Court has returned a finding that the plaintiff was a statutory tenant. Therefore, the Apex Court held that, the remedy of the tenant, if any, has to be found within four corners of the Rent Act and not under the Transfer of Property Act. 15. In Porinchu v. Shanmugham [ 1987 (1) KLT 742 ], in the context of Section 11 of the Kerala Buildings (Lease and Rent Control) Act, which deals with eviction of tenants, and Section 133 of the Criminal Procedure Code, 1973, which deals with conditional order for removal of nuisance, learned Single Judge of this Court held that, there is no question of the tenant acquiring any vested right under the Rent Control Act. It is a temporary legislation intended to control leases of buildings, eviction of tenants, and rent that could be realised. Tenants are not having any immunity from eviction and no fixity of tenure is conferred on them. The Act only says that so long as the relationship of landlord and tenant continues and the provisions of the Act are applicable a landlord can evict his tenant from a building only on proof of the existence of certain conditions. Tenants are not having any immunity from eviction and no fixity of tenure is conferred on them. The Act only says that so long as the relationship of landlord and tenant continues and the provisions of the Act are applicable a landlord can evict his tenant from a building only on proof of the existence of certain conditions. Those provisions are not intended to give the tenants any vested right not to be evicted or to continue eternally in occupation, but only to place some restrictions on the unfettered right of the landlord under the common law to evict his tenants freely according to his whims and fancies. Restrictions placed on eviction cannot be treated as vested rights conferred on the tenants. The Act does not confer any right at all on the tenant. 16. In Porinchu, before the learned Single Judge, the tenant contended that the proceedings initiated by the Sub Divisional Magistrate under Section 133 of the Criminal Procedure Code was mala fide intended only to overcome the provisions of the Rent Control Act. The learned Single Judge observed that, the Sub Divisional Magistrate initiated proceedings not for eviction of the tenants including the petitioner, but only in the discharge of a public duty to avert the public nuisance or danger to the occupants, neighbours or passers by. When the building is demolished in the discharge of that duty it may have the effect of the tenant vacating and the landlord getting vacant possession. That is only one of the result and not the purpose or object of the action. There is no right for a tenant in occupation of a building to say that, whatever be the justification for the action under Section 133 of the Criminal Procedure Code, it should not affect his right to continue in the building subject to the provisions of the Rent Control Act and that he is prepared to suffer the danger of the building felling down. Even if the landlord and the tenant jointly contend before the Sub Divisional Magistrate that the tenant may continue in the building and it should not be demolished, the Sub Divisional Magistrate can go ahead with his action if he is satisfied that the building has to be demolished. The object and purpose are not matters for deduction solely from the direct or indirect results that follow. The object and purpose are not matters for deduction solely from the direct or indirect results that follow. When a landlord moves the Rent Control Court for eviction of the tenant on the ground that the building is in such a condition that it requires reconstruction, the condition of the building, the necessity for demolition or reconstruction, the question of financial capacity and plan and licence, etc. may be matters within the competence of the Rent Control Court to decide. But Section 133 of the Criminal Procedure Code is unconnected with and independent of the provisions of the Rent Control Act. In a proceeding under Section 133 of the Criminal Procedure Code the Magistrate is the sole authority to decide the condition of the building and the necessity for its removal in public interest. 17. In the instant case, admittedly, cracks were developed in the building owned by the respondents-landlords on its southern wall, due to heavy rain, Consequently, the petitioners-tenants were evicted from the premises based on the orders of the Tahasildar and the building was also pulled down by the Tahsildar using earth mover. On account of the pulling down of the building, the lease was extinguished. Thereafter, the petitioners-tenants cannot put forward any right as the lessees of the building, which was pulled down by the Tahsildar. In order to seek re-induction into the premises, under the third proviso to Section 11(4)(iv) of the Act, the law requires two circumstances to be proved by the tenant. The first is that the tenant was evicted under an order passed under Section 11(4)(iv) and the second is that the building has been reconstructed by the landlord. Therefore, the right to seek re-induction into the tenanted premises, under the third proviso to Section 11(4)(iv) of the Act, is available only to a tenant who was evicted under an order passed under Section 11(4)(iv) of the Act and not to a tenant who was evicted from the tenanted premises in a proceedings under Section 133 of the Criminal Procedure Code or the relevant provisions of the Kerala Municipality Act, 1994 or the Kerala Panchayat Raj Act, 1994 to avert the public nuisance or danger to the occupants, neighbours or passers by. Therefore, as rightly held by the Rent Control Court and also the Rent Control Appellate Authority the petitioners-tenants are not entitled to any relief under the third proviso to Section 11(4)(iv) of the Act, as sought for in R.C.P.No.86 of 2014. 18. Section 20 of the Kerala Buildings (Lease and Rent Control) Act deals with revision. As per sub-section (1) of Section 20, in cases, where the appellate authority empowered under Section 18 is a Subordinate Judge, the District Court, and in other cases the High Court, may, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceedings taken under this Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings, and may pass such order in reference thereto as it thinks fit. As per subsection (2) of Section 20 of the Act, the costs of and incident to all proceedings before the High Court or District Court under subsection (1) shall be in its discretion. 19. In Hindustan Petroleum Corporation Limited v. Dilbahar Singh [ (2014) 9 SCC 78 ] a Five-Judge Bench of the Apex Court considered the revisional powers of the High Court under Rent Acts operating in different States. After referring to the law laid down in Rukmini Amma Saradamma v. Kallyani Sulochana [ (1993) 1 SCC 499 ] the Apex Court reiterated that even the wider language of Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 does not enable the High Court to act as a first or a second court of appeal. The Constitution Bench agreed with the view of the Three-Judge Bench in Rukmini Amma Saradamma that the word ‘propriety’ does not confer power upon the High Court to re-appreciate evidence to come to a different conclusion, but its consideration of evidence is confined to find out legality, regularity and propriety of the order impugned before it. 20. The Constitution Bench agreed with the view of the Three-Judge Bench in Rukmini Amma Saradamma that the word ‘propriety’ does not confer power upon the High Court to re-appreciate evidence to come to a different conclusion, but its consideration of evidence is confined to find out legality, regularity and propriety of the order impugned before it. 20. In Thankamony Amma v. Omana Amma [ AIR 2019 SC 3803 : 2019 (4) KHC 412 ] considering the matter in the backdrop of law laid down in Rukmini Amma Saradamma [ (1993) 1 SCC 499 ], Ubaiba v. Damodaran [ (1999) 5 SCC 645 ] and Dilbahar Singh [ (2014) 9 SCC 78 ] the Apex Court held that the findings rendered by the courts below were well supported by evidence on record and could not even be said to be perverse in any way. The High Court could not have re-appreciated the evidence and the concurrent findings rendered by the courts below ought not to have been interfered with by the High Court while exercising revisional jurisdiction. 21. Viewed in the light of the law laid down in the decisions referred to supra, it cannot be said that the order of the Rent Control Court, which now stands confirmed by the Appellate Authority, is either perverse or patently illegal or it suffers from any legal infirmity warranting interference under Section 20 of the Act. Therefore, we find no reason to interfere with the concurrent finding of the authorities below. In the result this Rent Control Revision fails and the same is accordingly dismissed.