IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 2ND DECEMBER 2008 / 11TH AGRAHAYANA 1930 RCRev..No. 205 of 2008() ------------------------ RCA.99/2006 of II ADDL.DISTRICT COURT,ERNAKULAM RCP.94/2005 of III ADDL.M.C.EKM (RENT CONTROL) .................... (S): APPELLANT IN R.C.A AND RESPONDENT IN R.C.P: --------------------------------------------------------------- GEORGE, AGED 52, S/O.LATE KALLACHUMURIYIL VARGHESE, BUSINESS, "BONEY DRESSES', NO.40/2840, BROADWAY, ERNAKULAM. BY ADV. SRI.VARGHESE C.KURIAKOSE RESPONDENT(S): RESPONDENT IN R.C.A AND PETITIONER IN R.C.P: ----------------------------------------------------------- K.B.ABDUL RAHIMANKUTTY, AGED 70 YEARS, S/O.LATE K.A.BAVA, KOOVAPARAMBIL, ERNAKULAM, NOW RESIDING AT RADHA OIL MILLS ROAD, PACHALAM, KOCHI-682 012. ADV. SRI.P.S.USUPH FOR R1 SRI.P.U.ZIYAD FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 17/11/2008, THE COURT ON 2/12/2008 PASSED THE FOLLOWING: I.A. NO.2078/2008 DISMISSED 2/12/2008 SD/- P.R. RAMAN, JUDGE. SD/- T.R. RAMACHANDRAN NAIR, JUDGE. // TRUE COPY // P.S. TO JUDGE P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - R.C.R. No.205 of 2008 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of December, 2008. Ramachandran Nair, J. The tenant is the revision petitioner. The respondent/landlord sought eviction under Sections 11(3), 11(4)(iii), 11(4)(v) and 11(8) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (hereinafter referred to as 'the Act'). The Rent Control Court allowed eviction under Sections 11(4)(iii) and 11(8) of the Act. In appeal filed by the tenant, the Appellate Authority upheld the order. 2. The short facts leading to the dispute are the following: The petition schedule building is a room in the first floor of a large building situated on the western side of Broadway in Ernakulam. The landlord is conducting business in the name and style “Bavas” as a partnership along with his son in the ground floor of the building. They are dealing in ready made garments. The upper floor of the said room is the petition schedule room numbered as 40/2845 of Cochin Corporation. The tenant is the owner of shop No.40/2840 in the ground floor which is next adjacent to the room on the north of the landlord's room, wherein he is doing business in ready RCR 205/2008 -2- made dresses in the name and style “Boney Dresses”. He is using the tenanted premises as a godown and office. The rental arrangement started in the year 1991 and the monthly rent is Rs.500/-. According to the averments in the Rent Control Petition, the tenant is liable to be evicted on various grounds like cessation of occupation without reasonable cause ( Section 11(4)(v) of the Act), additional accommodation required for the landlord (Section 11(8) of the Act) in view of the fact that the business of the landlord is expanding day by day and the space available in his shop is insufficient. It was further contended that the respondent has got three other buildings, first one being building No.40/2849 in Penta Menaka building complex which is about 15 feet away from the petition schedule building, another building in D.D. Vasthra Mahal in Post Office Link Road, Ernakulam at a distance of about 150 meters away from the schedule building and third one in M.G. Road, Ernakulam and hence the ground under Section 11(4)(iii) is also attracted. 3. Before the Rent Control Court, on the side of the landlord the oral testimony consists of P.Ws.1 and 2 and Exts.A1 to A6 were marked. Exts.C1 and C2 are the reports of the Advocate Commissioner. P.W.2 is the Advocate Commissioner who filed Exts.C1 and C2 reports. The tenant was examined as R.W.1. 4. On these pleadings and evidence, the Rent Control Court found RCR 205/2008 -3- that the additional accommodation required by the landlord is justified. Reliance was placed on the reports of the Commissioner, Exts.C1 and C2 as well as the evidence of P.W.2. As regards the grounds under Section 11(4) (iii) of the Act are concerned, it was found by the Rent Control Court that the tenant is having possession of own buildings in Penta Menaka Shopping Complex and D.D. Vasthra Mahal and hence he is liable to be evicted from the premises in question. These findings have been upheld by the Appellate Authority. 5. We heard Shri C. Varghese Kuriakose, learned counsel appearing for the petitioner and Shri P.S. Usuph, learned counsel who appeared for the respondent. Learned counsel for the petitioner mainly raised three contentions. Firstly, that the ingredients of Section 11(8) are not attracted here, since the schedule room is part of a building of which the landlord is not the sole owner. It consists of several rooms owned by different parties and hence Section 11(8) is not attracted and he can seek eviction only under Section 11(3) of the Act. Secondly, it was contended that going by the averments in the eviction petition, in the ground floor a partnership is doing business in the premises of the landlord and as per Section 11(8) of the Act, additional accommodation can be sought only for personal use of the landlord. As a partnership is in occupation of the premises, the said limb of Section 11(8) is not attracted. Lastly, it was contended that the findings RCR 205/2008 -4- rendered by the authorities below regarding the grounds under Section 11(4) (iii) are not correct. It is contended that the room in Penta Menaka complex is not owned by the tenant, but it is owned by his son and the room in D.D. Vasthra Mahal is being used for conducting a wholesale business and it cannot be used as a godown and hence it is not reasonably sufficient for the business purpose of the tenant. Learned counsel for the landlord opposed these arguments based on the pleadings and evidence in the case and the findings rendered by the authorities below. 6. We may first examine whether the authorities were right in ordering eviction under Section 11(8) of the Act. For convenience, we extract Section 11(8) of the Act which reads as follows: “11(8) A landlord who is occupying only a part of a building, may apply to the Rent Control Court for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the landlord in possession thereof, if he requires additional accommodation for his personal use.” The evidence shows that the landlord and the tenant are owners of adjacent rooms where they are respectively conducting business in the ground floor. The deposition of the landlord shows that his father was having five rooms in the ground floor and five rooms in the upper floor and the landlord obtained the two rooms in family partition. The room occupied by the tenant was allotted to the share of his brother and he was a tenant under RCR 205/2008 -5- him and subsequently he purchased the said premises. Actually, the business that is being run by the landlord was started by his father and the landlord succeeded the said business on his death. For a short period he stopped the business and the premises was rented out and after getting surrender of it, it was restarted. His son also joined him and later they formed a partnership evidenced by Ext.A3. The evidence shows that the licence and the sales tax registration stand in the name of the landlord himself. The plea raised by the learned counsel for the petitioner is that the entire building is not owned by the landlord, he is only occupying a portion of the building and in that view of the matter, he cannot seek eviction on the ground of additional accommodation under Section 11(8) and actually he could have moved only under Section 11(3) of the Act. 7. The building is having a common roof and the structure consists of different rooms. In the ground floor adjacent rooms are owned by the landlord and the tenant and the landlord owns the upper floor of his room which is rented out to the tenant. The definition of term 'building' in Section 2(1) of the Act is apposite here and we extract the same below: “2(1) “Building” means any building or hut or part of a building or hut, let or to be let separately for residential or non residential purposes and includes- (a) to (c) x x x x x x x x x “ RCR 205/2008 -6- Bearing in mind the above facts, we will now refer to the dictum laid down in various cases by the Apex Court and this Court in practically similar situations. The Apex Court in Shri Balagenasan Metals v. M.N. Shanmugham Chetty and others (AIR 1987 SC 1668) considered almost an identical argument. The provision considered therein is Section 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act. Therein, the landlady was occupying the first floor for residence and the tenant was using the ground floor as a godown. Eviction was sought of the portion occupied by the tenant under Section 10(3)(c) of the Act on the plea that the landlord requires the said area bonafide for additional accommodation for residential purposes. It was argued that since the ground floor constitutes a building by itself, by the definition of the term 'building' in Section 2(2) of the Act, eviction can be sought only under Section 10(3)(a)(i) of the Act for own occupation and not under Section 10(3)(c) for additional accommodation. After considering the definition of the term 'building' in Section 2(2), their Lordships held in para 8 as follows: “It is no doubt true that under Section 2(2), a building has been defined as not only a building or hut but also part of a building or hut let separately for residential or non-residential purpose. That would, however, only mean that a part of a building which has been let out or which is to be let out separately can also be construed as a separate and independent building without reference to the other portion or portions of the building where it is not RCR 205/2008 -7- necessary to treat the entire building as one whole and inseparable unit. A limitation on the definition has been placed by the Legislature itself by providing that the application of the definition is subject to the contextual position. Therefore, it follows hat where the context warrants the entire building being construed as one integral unit, it would be inappropriate to view the building as consisting of several disintegrated units and not as one integrated structure. ................................ If as contended by the appellant each portion of a building let out separately should always be construed as an independent unit by itself then there is no scope for a landlord occupying “a part of a building” seeking eviction of a tenant “occupying the whole or any portion of the remaining part of the building”. It is, therefore, obvious that in so far as Section 10 (3)(c) is concerned, the Legislature has intended that the entire building, irrespective of one portion being occupied by the landlord and the other portion or portions being occupied by a tenant or tenants should be viewed as one whole and integrated unit and not as different entities. To import the expansive definition of the word “building” in Section 2(2) into Section 10(3)(c) would result in rendering meaningless the words “part of a building” occupied by the landlord and a tenant “occupying the whole or any portion of the remaining part of the building”. The third factor militating against the contention of the appellant is that if a portion of a building let out to a tenant is to be treated in all situations as a separate and independent building then Section 10(3)(c) will be rendered otiose because the landlord can never then ask for additional accommodation since Section 10(3)(a) does not provide for eviction of tenants on the ground of additional accommodation RCR 205/2008 -8- for the landlord either for residential or non-residential purposes. It is a well settled rule of interpretation of statutes that the provisions of an Act should be interpreted in such a manner as not to render any of its provisions otiose unless there are compelling reasons for the Court to resort to that extreme contingency.” In the light of the above dictum, herein also we will have to consider the whole building as an inseparable unit and not to treat the portions in occupation of the owner as well as the tenant as different buildings. 8. This court in similar cases has considered the true interpretation of Section 11(8) of the Act. Firstly, we will refer to the decision of this court in Shaji Varghese v. Cherian (1993 (1) KLT 133), wherein after referring to the provisions of Section 11(8) of the Act, Viswanatha Iyer, J. (as he then was) explained the legal position pithily in the following words: “So far as the Kerala Act is concerned, what is made relevant is a whole building and the occupation of a portion thereof by the landlord. If the construction adumbrated by the petitioner were to be accepted, it may as well lead to the startling result of S.11(8) being rendered otiose and purposeless, for it is unlikely that the landlord will be in possession of any area, which is not completely cut off from the portion in the possession of the tenant. A building of the nature, we have in this case, constructed and intended to be used as one, integral unit, different portions of which are occupied either by the tenant or by the landlord, cannot be treated as different buildings to preclude the operation of Section 11(8). The upstairs and downstairs portions constitute but parts of a whole building, which RCR 205/2008 -9- cannot be split up into different buildings for purposes of S.11(8). The building in question is one for which the normal access is through a staircase situate inside the building which stands closed only temporarily. In the absence of pleadings, and in the absence of anything to indicate that the two portions were intended to be used to the exclusion of the other, it is not possible for us to accept the petitioner's contention that they are different buildings, and not portions of the same building to which S.11(8) will apply.” Therefore, what is relevant is to consider whether the whole building is an integral unit and the occupation of a portion thereof by the landlord and another by the tenant. In Punjab National Bank v. Dr.A.K. Sabhapathy (2001 (1) KLJ 86) Hariharan Nair, J. speaking for the Bench, reiterated the said legal position by stating that: “The term 'building' referred to in Sec.11(8) has to be given a wider meaning. The question is whether the two portions form part and parcel of one and the same larger structure with a common roof. It was found that as far as Act 2 of 1965 is concerned, what is made relevant is a whole building and the occupation of a portion thereof by the landlord. If the restricted meaning pleaded by the tenant is accepted, it was found , the startling result would be that Sec.11(8) would be rendered otiose and purposeless. A building constructed and intended to be used as one integral unit of which portions are occupied by the tenant and the landlord respectively cannot be treated as different buildings to preclude the operation of Sec.11(8).” Again, the same question came up for consideration in John v. Manuel (2004 (3) KLT 318). The facts of the case show that the landlord was in RCR 205/2008 -10- occupation of one of the rooms and the tenant, another room in the same building. Eviction was sought for additional accommodation. The tenant argued that a petition can be maintained only under Section 11(3) of the Act and not under Section 11(8) of the Act. It was mainly contended that Section 11(8) would not apply since the tenanted premises is not part of a single building. After referring to the definition of building in Section 2(1) of the Act, K.S. Radhakrishnan, J. (as he then was), laid down the legal position thus: “The mere fact that the rooms in that compact block could be sold separately does not mean that oneness has been lost. Further the mere fact that tenanted premise is three rooms away from the room occupied by the landlord would not mean that S.11(8) is not attracted. The question is whether all the rooms form part of one block and therefore part of a building. Under S.11(8) it is not necessary that the room should be adjacent, but the test is whether tenanted building forms part of the same building though separated by a few shop rooms. If all the rooms including the rooms occupied by the tenant and the landlord form part of a single building, though separated by two or three rooms, would not lose its oneness and therefore S.11(8) could be attracted. Under S.11(8) the nature of additional requirement should have some nexus with the existing need. Going by the structure of the building, we are of the view tenanted premises as well as the portion in the occupation of the landlord forms part of the same building and the purpose is also supplementary. S.11(8) therefore would squarely apply.” RCR 205/2008 -11- Later, another Division Bench of this court in Bonny v. Koshy P. John (2005 (1) KLT SN 114 (Case No.145) has held that “portions occupied by the landlord and tenant of the same building used as an integral unit cannot be treated as different buildings in the context of a claim under Section 11 (8) of the Act.” The Division Bench profitably referred to the earlier decision of this court in Shaji Varghese's case (1993 (1) KLT 133). 9. Therefore, the only question to be looked into is whether the tenanted premises forms part of the same building, a portion of which is in occupation of the landlord. The building herein is under the same roof and forms part of the the same structure. Both the landlord and the tenant own separate floors in the very same building and the schedule room, as noted above, is in the upper floor. Therefore, the occupation by the landlord of part of the building for the purpose of Section 11(8) is there and the tenant is also occupying another room on the remaining part. It is an integral unit. A restrictive interpretation as sought for by the learned counsel for the petitioner is not warranted, especially in the light of the clear definition of the term 'building' in Section 2(1) of the Act. Otherwise, if the construction as sought for by the petitioner's counsel is adopted, then the provision will become unworkable and otiose. What is necessary under Section 11(8) is only occupation by the landlord of a part of the building in which the tenanted premises forms another part. It does not speak of exclusive RCR 205/2008 -12- ownership of the entire structure. Even if some of the rooms of the whole building are owned by other persons, that cannot defeat the right of the landlord to seek eviction under Section 11(8) of the Act. Only thing to be considered is whether the landlord and the tenant are occupying part of the same building. Therefore, the statutory requirements cannot be curtailed by any interpretive process. The plain terms of the statute does not warrant such an interpretation. Therefore, we reject the said argument raised by learned counsel for the petitioner and we find that a petition for eviction under Section 11(8) of the Act is maintainable on the facts of this case and the plea that it is maintainable only under Section 11(3) is not correct. 10. The next question is whether eviction can be ordered as sought for by the landlord, who is conducting a business in partnership with his son, as according to the learned counsel, only if additional accommodation is required for "personal use" of the landlord, he can seek eviction. Learned counsel for the petitioner relied upon the principles stated in Lieya v. Kaliappa Chettiar Sons (1995 (2) KLT 783) and Abdussalam v. Bhaskaran (2005 (3) KLT 71) in support of the above argument. It was contended that even though in Rajkumar Chadda and another v. V.P. Abdulrahiman and others (1987 KLJ 677) a learned Single Judge of this court has taken the view that Section 11(8) of the Act is attracted even if the landlord is conducting a partnership business, the later decisions above RCR 205/2008 -13- quoted will require a re-look of the legal position declared in the said decision. Our attention was invited to the eviction petition, wherein in para 1 it is stated that the landlord is doing business along with his son in partnership in building No.40/2839. It is submitted that as the firm is in occupation of the premises, by no stretch of imagination it can be contended that the use of the premises by the firm can be termed as occupation of the premises by the landlord, so that additional accommodation required cannot be termed as for his personal use also. 11. Before going into the pleadings and evidence, we will refer to the dictum laid down in Rajkumar Chadda's case (1987 KLJ 677). U.L. Bhat, J. (as he then was) laid down the legal position in the following words: “In the case of a partner who is actively concerned with running partnership business, he must be deemed to be in occupation of the business premises and when accommodation is required for running a partnership business it is treated as being required for his own occupation. Section 11(8) does not contain the words "his own occupation". What section 11(8) contemplates is requirement of additional accommodation for his personal use. It is significant to note that the expression 'own' is absent in section 11(8). Additional accommodation must be required for his personal use and not for his exclusive personal use. When a partnership is running a business, at least so far as the active partners are concerned (it is unnecessary to consider the case of dormant partners since there is no case that the RCR 205/2008 -14- landlord herein is only a dormant partner) they are personally using the premises. The landlord in this case as an active partner of the business is personally using the premises and when additional accommodation is required for the business of the partnership the requirement is for his personal use. It may be that it is for the personal use of other active partners also. But as long as the provision does not insist on the requirement for exclusive personal use, the court will not be justified in putting such a narrow construction to the provision." 12. We will now refer to the pleadings and evidence available in the case. In the objections the contention raised by the tenant is that actually the landlord is not doing business in the ground floor, but his son alone is doing business. The landlord was examined as P.W.1. In the proof affidavit the details as to the business that is conducted and the formation of partnership have been stated. According to him, in the room in the ground floor he is conducting business in ready made garments in the name and style "Bavas" and his son Faizal is also a partner. Ext.A2 is the lease deed executed by the tenant. Ext.A3 is the deed of partnership executed on 9.11.2000 between the landlord and his son. Ext.A4 is the certificate showing the particulars of registration under the Sales Tax Act and Ext.A5 is the application submitted under the Kerala Value Added Tax Rules. In the cross examination he has stated that the business in the name and style "Bavas" was started 3 to 4 years before and the father and son are jointly