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2022 DIGILAW 899 (KER)

T. J. Lukose v. Asha Tegi Wife Of Tegi M. Mani

2022-10-21

A.MUHAMED MUSTAQUE, SHOBA ANNAMMA EAPEN

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ORDER : A.Muhamed Mustaque, J. The Landlady's attempt to evict two tenants for the need of her husband to create an open space for a building constructed by the husband on an adjacent land has been successful. The husband intends to occupy the land after the demolition of the tenanted premises. The tenants have come up with these revisions. The rent control petitions were tried by the Rent Controller in different proceedings. As a result, divergent findings were made by the Rent controller. However, the appellate authority heard the matter together and passed an order allowing eviction sought by the landlady under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as the “Act”). 2. The learned counsel for the tenants, Shri Abraham George Jacob, ably argued the matter in extenso and submitted that the appellate authority misread Section 11(3) of the Act by allowing eviction. According to the learned counsel, the need projected was for the husband to occupy the tenanted premises after demolition, for creating an open space for a building illegally constructed by the husband in the adjacent land. By elaborating his argument, he submits that a need cannot be termed as ‘bona fide’ to take advantage of a wrong committed by constructing an illegal building. He further submits that the husband had let out his building to the tenants and, therefore, the need is actually to ensure the occupancy of the building by those tenants under the husband. He also submits that Section 11(3) is not attracted in as much as that the occupancy was not for the husband but for those tenants under him. 3. Per contra, the learned counsel for the landlady submits that the need arose essentially when the Municipality cancelled the occupancy certificate of the adjacent building belonging to the husband as it was found that the building was constructed without the required open space. Hence, it is submitted that in order to comply with the Municipal Building Rules, the building in occupation of the tenants are required to be demolished. The learned counsel further submits that the land after demolition of the existing building will be retained as an open space for the building constructed by the husband, and the husband will occupy that land for his building. The learned counsel further submits that the land after demolition of the existing building will be retained as an open space for the building constructed by the husband, and the husband will occupy that land for his building. He submits that it is not for the tenants under the husband, rather, the land is required for the husband himself. 4. The facts leading to this case are as follows: The husband of the landlady approached the Kottayam Municipality for construction of a building on his land which is adjacent to the tenanted premises. In the application, the landlady was also joined. This was the reason that the tenanted premises were shown as the buildings to be demolished. Apparently, in that application, the area of the tenanted premises of the landlady was shown, to comply with the building rules for the proposed construction of the husband. The Municipality granted permission on 27/8/2005. It appears that the husband of the landlady abandoned the originally proposed construction. According to the landlady, since the tenants refused to surrender the building, the husband had abandoned the construction in accordance with the plan submitted to the Municipality. The husband thereafter, submitted a fresh plan. In this fresh plan, the buildings occupied by the tenants were not shown. The plan was approved on 29/12/2007. Based on the permit granted, the husband completed the construction of the building in 2009 and obtained the occupancy certificate on 12/6/2009. Thereafter, on 29/6/2013, the Municipality issued a memo stating that the construction was carried out in violation of the building permit. The Municipality issued an order of demolition and thereafter, cancelled the occupancy certificate on 18/7/2013. The challenge made by the husband of the landlady before the Tribunal for the Local Self Government Institutions was also unsuccessful. If the building in occupancy of the tenants is demolished, the husband of the landlady will be able to provide open space for his new building and regularize his construction. This is how the landlady approached the Rent Controller. 5. In this revision, we need to consider whether the need projected by the dependent husband of the landlady is allowable or not, in the context of Section 11(3) of the Act. This is how the landlady approached the Rent Controller. 5. In this revision, we need to consider whether the need projected by the dependent husband of the landlady is allowable or not, in the context of Section 11(3) of the Act. The learned counsel for the revision petitioner relied on the following judgments of the Apex Court and this Court: i. Immani Appa Rao and others v. Gollapalli Ramalingamurthi and others [ AIR 1962 SC 370 (V 49 C 58)] ii. Haridasan K. and Others v. P.K.Mohanan and Others [ 2021 (3) KHC 365 ] 6. By placing reliance on the Immani Appa Rao's case (supra) where the Apex Court referred to the “Law of Evidence” by Taylor to elucidate upon a question germane to fraud alleged, to defraud creditors, the learned counsel for the revision petitioner argued that the Court shall not aid a man who constructed the building illegally. It is submitted that no one can take advantage of his own wrong. According to him, the need is projected to save an illegal construction by the husband of the landlady. Therefore, it was submitted that the need lacks bona fide. 7. The principle that no man can take advantage of his own wrong, is a principle relating to equity and the legal maxim “nullus commodum capere popest de injuria sua propria” corresponds to it. This apparently refers to ‘in relation or in context’ between the wrongdoer and the wronged. That means, based on the wrong done by the wrongdoer, equity cannot be claimed by the wrongdoer as against the wronged, based on the relation or arising out of a transaction related to the wrong. The commission of wrong and benefitting the wrong must arise from the same transaction to apply the principles of equity as above. The illegal construction though would affect the neighbouring owners/occupants including the tenants of the landlady, the benefit or advantage now claimed is not out of a wrong caused in the physical sense to the neighbouring occupants, but to regularize a 'wrong' in a technical sense i.e violation of law. The building constructed in the husband's land is required to be pulled down for violation of law. No wrong has been committed as against the tenants herein. The 'wrong elsewhere' can be a 'right somewhere'. The building constructed in the husband's land is required to be pulled down for violation of law. No wrong has been committed as against the tenants herein. The 'wrong elsewhere' can be a 'right somewhere'. The requirement of the building for the dependent husband is to legalize a construction made by him through the process of law . The advantage or benefit to the wrongdoer is based on law. If the landlady had approached the Rent Controller before the construction of the building by the husband for the eviction of these tenants for open space of the building proposed by the husband, it could have been allowed. If that be the case, approaching the court for eviction after the construction is over, cannot be tainted as malafide. No doubt, the construction was in violation of the law. On an equitable consideration, it was not a 'wrong' to the tenants herein. As already observed, if this could have been allowed much before the construction was carried out by him, availing it at a later point of time, cannot be assailed to blame, as an advantage based on the 'wrong' committed by him. The eviction sought is to legalise an illegal act. An illegal act can be legalised through due process of law. That cannot be termed as one taking advantage of his own wrong. 'Wrong once', cannot be treated as 'wrong always'. Law itself is evolved to regularise a wrong in a lawful manner. If the law can erase a wrong in a lawful manner, that cannot be blamed on the premise that one is taking advantage of his own wrong. This challenge therefore, fails. 8. The learned counsel Shri Abraham George Jacob then placed reliance on Haridasan's case (supra). The Division Bench of this Court in Haridasan's case held that the eviction sought, for demolition and reconstruction of the building, let out to tenants, is not amenable under Section 11(3) of the Act. The Division Bench held that the bona fide relief sought by the landlord must be for his own occupation or occupation of the member of his family; and it cannot be for the occupation of a tenants under them. The word 'occupation’ occurring in Section 11(3) of the Act is having a wider connotation. In Black's Law Dictionary (Eighth Edition), 'occupation' means, 'the possession, control, or use of real property; occupancy'. 9. The word 'occupation’ occurring in Section 11(3) of the Act is having a wider connotation. In Black's Law Dictionary (Eighth Edition), 'occupation' means, 'the possession, control, or use of real property; occupancy'. 9. In the context of the eviction under the Act, the 'occupancy' denotes physical possession of the building after the eviction. Maybe in legal parlance, if eviction is sought on behalf of the dependent, it can be treated as an occupancy, as the legal possession could be retained with the landlord. If the occupation of the building is by the landlord himself, then the occupation becomes possession by the landlord in both physical and legal character. Here, no doubt, the term 'occupancy ' denotes ‘control’ which could be relevant inasmuch as that the legal possession will be retained by the landlady as the eviction was sought on behalf of the dependant. The control over the vacant land will be with the husband after the demolition of the tenanted premises. There is no controversy that a tenant can be evicted from a building to occupy the land after demolition of a structure under Section 11(3) of the Act. {See the judgment of this Court in Krishna Menon v. District Judge [ 1988 (1) KLT 131 ]. Therefore, there is no difficulty for the landlord to occupy the land after demolition of the tenanted premises. The land will be in his control and not under the control of the tenants in his building. If the immediate control of the land, after demolition of the existing building is with another, other than the landlord or his dependant, it is only in such cases that Section 11(3) of the Act cannot be attracted for eviction. In the light of the discussions as above, these rent control revisions fail. We allow the tenants to surrender the building within two months from today on condition that the tenants file an undertaking within two weeks from today before the Rent Controller. The tenants shall also clear the entire arrears of rent within two weeks from today.