IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 16TH JANUARY 2009 / 26TH POUSHA 1930 RCRev..No. 302 of 2008() ------------------------ RCA.41/2004 of RENT CONTROL APPELLATE AUTHORITY ( DISTRICT COURT), MANJERI RCP.8/2002 of RENT CONTROL COURT (MUNSIFF'S COURT), PARAPPANANGADI .................... REVISION PETITIONERS/APPELLANTS/RESPONDENTS --------------------------------------- 1. PADMANABHAN NAIR S/O. THELLAPALLI PLASSERI NARAYANI AMMA CHELEMBRA AMSOM DESOM, TIRURANGADI TALUK MALAPPURAM DISTRICT. 2. PULIYANCHERI NADUTHODI BALAKRISHNAN S/O.PADMANABHAN NAIR CHELEMBRA AMSOM DESOM, TIRURANGADI TALUK MALAPPURAM DISTRICT. BY ADV. SRI.T.K.SAIDALIKUTTY SMT.ANITHA M.N. (EKM) RESPONDENT/RESPONDENTS/PETITIONERS: ------------------------------------------------- 1. THIRUVANGAT DEVAKI BRHAMANI AMMA D/O. NARAYANAN NAMBEESSAN, CHELEMBRA AMSOM DESOM, TIRURANGADI TALUK TIRURANGADI TALUK, MALAPPURAM DISTRICT. 2. THIRUVANGAT SUMATHI W/O.PARAMESWARAN NAMBEESSAN CHELEMBRA AMSOM DESOM, TIRURANGADI TALUK TIRURANGADI TALUK, MALAPPURAM DISTRICT. 3. THIRUVANGAT SREEJA D/O. PARAMESWARAN NAMBEESSAN CHELEMBRA AMSOM DESOM, TIRURANGADI TALUK TIRURANGADI TALUK, MALAPPURAM DISTRICT. ADV. SRI.K.T.SHYAMKUMAR FOR R1 TO 3 SRI.HARISH R. MENON FOR R1 TO 3 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 16/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE, M.C. HARI RANI, JJ. ----------------------------------------------- RCR. No. 302 OF 2008 ----------------------------------------------- Dated this the 16th day of January, 2009 O R D E R Pius.C.Kuriakose, J. A tenant who has suffered order of eviction concurrently on the ground under Section 11(3) of the Kerala Buildings (Lease & Rent Control) Act, 1965 by the Rent Control Court as well as the Appellate Authority is the revision petitioner. The parties will be referred to as tenant and the landlords respectively. The case of the landlords was that the petition schedule room which is a bunk room is required so that one Rajan - PW2, husband of the third respondent could put up a new building after demolishing the existing building and start printing press business therein. The contention which was prominently raised by the tenant was that he is a lessee of the land and that the building in question was put up by him only and therefore he has ownership of the building. The above contention was repelled concurrently by the courts below on the basis of evidence which consisted inter alia of property tax assessment registers maintained by the local authority in relation to WP(C)N0. -2- the building. The tenant did not specifically claim that the rent control petition was liable to fail in view of the first proviso to section 11(3). He claimed protection of the proviso to section 11(3). He failed in establishing that he satisfies either of the ingredients of that proviso. Thus his claim for protection under the second proviso was also turned down concurrently. 2. Pursuant to our order dated 12-1-2009 the respondents were served with notice by special messenger. But they did not enter appearance before this court. Sri.T.K.Saidalikutty, learned counsel for the petitioners addressed us in detail on the various grounds raised in the revision memorandum. Sri.Saidalikutty submitted that the rent control petition was liable to be dismissed despite the finding that the claim is bona fide and the further finding that the tenants are not entitled to the protection of the second proviso to Section 11(3). According to him, the petition shall fail in view of the first proviso to Section 11(3). Learned counsel conceded that the tenants were unable to show that the landlords were in possession of another building of WP(C)N0. -3- their own possession in which they could accomplish their projected need. He drew our attention to the judgment of this court in Ikkorakutty v. Hariharan ( 1973 KLT 986). The learned counsel argued that in the nature of the need which is projected by the landlords it is not necessary that it is shown that the landlords are having possession of another building of their own. It is sufficient if it is shown that the landlords have possession of other lands upon which they could construct a new building. We shall straight away deal with the above argument of the learned counsel. Ikkorakutty v. Hariharan was a case in which the learned single Judge of this court, Justice K.Bhaskaran (as he then was) was dealt inter alia with the scope and ambait of the first proviso to Section 11(3). The learned Judge has stated at paragraph 10 of his judgment as follows: “ Where virtually the petition amounts to one for recovery of the site on which the building is situated, inasmuch as the landlord's case is that he wants to demolish the existing buildings and put up a new buildings for a specific use, the bona fide need of the landlord has to be tested from an angle different from that of the case in which recovery of possession sought for is that of the building itself. The section in terms contemplates only recovery of the building for his own occupation. The effect of WP(C)N0. -4- the first proviso to Sub. Section (3) of Section 11 has also to be construed when the petition in essence amounts to one for recovery of the site alone. Here when the prayer is virtually for recovery of the site, by the analogy of the provisions contained in the first proviso to Sub section (3) of Section 11 the Court should necessarily go into the question whether the landlord is possessed of other site where he could construct the building. If he is possessed of another site, he cannot claim recovery of the building in order to secure the site thereof for the purpose of erecting another building. The assumption that the landlord has any such unfettered choice in the matter will defeat the very object of the protective measure. We are not inclined to rely on the judgment in Ikkorakutty v. Hariharan for more than reasons than one. On going through the judgment in Ikkorakutty v. Hariharan, we notice that the learned single Judge in that decision has taken the view that the Kerala Buildings (Lease & Rent Control) Act, 1965 has been enacted with the object of giving protection to tenants who according to the learned Judge belong to the weaker section not possessed of their own building either for their residence or for carrying on their occupation as the case may be. According to the learned Judge, the statute is based on the concept of security of tenancy for the tenants. The above view of the learned Judge that the rent control legislation is a welfare legislation WP(C)N0. -5- for the tenant alone can no longer be good law in view of the subsequent decisions of the Supreme Court taking the view that the rent control legislation is a welfare legislation for the landlord also. (see the decisions of the Supreme Court in ..... ) It is seen in Ikkorakutty v. Hariharan the learned single Judge has ruled that the burden to establish the availability of suitable buildings to the tenant in the context of the second proviso to section 11(3) is that of the landlord and also that the relevant point of time for determining the availability of suitable buildings is the date of passage of the eviction order. It is seen that a Division Bench of this Court in Kochappan Pillai v. Chellappan, 1976 K.L.T. 1 expressly overruled the judgment in Ikkorakutty's case on the above point and held that the burden of proof in the context of the second proviso to section 11(3)is that of the tenant and that the relevant point of time for determining the availability of alternate buildings to the tenant is the time of instituiton of the rent control petition. We find that in Ikkorakutty's case the learned single Judge has WP(C)N0. -6- taken the view that in applications under section 11(3) the Rent Control Court shall make a comparative evaluation of the hardships to the parties. We are unable to subscribe to that view and also to the view taken that when the need projected under section 11(3) is to have own occupation after demolishing the tenanted building and putting up a new one the first proviso to section 11(3) will be attracted if it is seen that the landlord owns and possesses other vacant sites. Even though the Division Bench in Kochappan Pillai's case referred to the judgment in Ikkorakutty's case in detail the Bench does not appear to have considered the implications of the observations of the learned single Judge which we have quoted herein before. The Bench has only referred to section 11(4)(iv)and observed that provision of the first proviso to section 11(3) is confined to section 11(3) and its extension to section 11(4)(iv) is not permitted under the Act. We shall therefore proceed to consider whether in cases where the need projected under section 11(3) is to put down the existing building and put up a new building for the landlord or his dependent family member, WP(C)N0. -7- the need should be considered as a need for the site of the building alone and hence the availability of alternate sites suitable for putting up building should entail disqualification in terms of the first proviso to section 11(3). The first proviso to section 11(3) is extracted below: “Provided that the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular case it will be just and proper to do so”. A plain reading of the subsection and the above quoted proviso will show that it is the possession of own building by the landlord in the same city, town or village which disables the Rent Control Court from ordering eviction in the absence of special reasons. The term 'building' has been defined in the statute as any building or hut or part of a building or hut, let or to be let separately for residential or non- residential purposes. The argument of Sri. T.K.Saidalikutty was that the building as per the definition will include gardens, grounds and the site of the building also. But, a careful reading of the definition clause will show that it is only gardens and WP(C)N0. -8- grounds which are let or to be let along with the building or hut which are envisaged by the statute to be covered by the definition of the term 'building'. Even if it is accepted that building site is also a part of the building it is not possible to accept the argument that the site sans the building will qualify as building. The Division Bench in Kochappan Pillai's case(supra) has observed inter alia at paragraph 12 its judgment that recovery of possession of mere site will not be covered by Act 2 of 1965 since the Act deals exclusively with buildings. As already stated, a plain reading of the proviso will show that the proviso speaks of own buildings possessed by landlords and not building sites. We have, therefore, no doubt in our mind that in order to apply the first proviso to Section 11 (3) the landlord must be possessed of another building of his own. The intention of the legislature in enacting the first proviso to section 11(3) is clearly that when the landlord's avowed need under section 11 (3) can be accomplished through a building already possessed by him the tenant should not be disturbed on the basis of that need. WP(C)N0. -9- Our above view does not mean that in a case where the landlord's need under section 11(3) is to put up a new building on the site of the tenanted building for own occupation, the availability of a suitable site with the landlord in the vicinity of the tenanted building is totally irrelevant. The same may have a relevance while deciding the crucial question whether the need and the claim are bona fide. We are unable to approve the learned Single Judge's view that comparative hardships of the parties is to be taken into account while deciding the bona fides of a need and claim under section 11(3). The concept of comparative hardship or rather of the comparative evaluation of the advantages to the landlord and hardship to the tenant resulting from an order of eviction is incorporated in the first proviso to section 11 (10). That provision is applicable only to applications for eviction on the ground of additional accommodation under sub section (8) of Section 11. We are therefore of the view that the judgment in Ikkorakutty v. Hariharan to the extent it interprets the scope of WP(C)N0. -10- the first proviso to section 11(3) and also the view expressed regarding applicability of comparative hardship to applications under section 11(3) has not been correctly decided. There are other reasons to reject Mr.Saidalikutty's argument raised in the context of alleged availability of vacant site with the landlords for construction of new building. On going through the pleadings it is seen that the contention that the rent control petition was liable to fail in view of the first proviso to section 11(3) was never taken by the revision petitioners tenants. The law is that it is for the landlord to assert first that he has no other building in his own possession which disables him from getting an order of eviction in view of the first proviso to section 11(3). When such an assertion is made by the landlord it is for the tenant to contend that the assertion of the landlord is wrong. The landlords' specific pleading is to the effect that they have no other building of their own in their possession. PW-1, the landlady testified in her chief examination that none of the landlords have any building or land ( ) by which the projected need could be satisfied. We notice that the above WP(C)N0. -11- assertion of the landlady was not challenged in cross- examination. It is in the cross-examination of PW-2 the defacto claimant that it is brought out that the family of landlords have other existence of land. But here again, despite lengthy cross- examination PW-2 is not asked as to why those lands are not being utilised for accomplishing the bona fide need of constructing new building. To allow the revision petitioners to raise a contention based on the first proviso to section 11(3) at this belated stage will result in serious prejudice to the landlords. As already indicated, the contention which was prominently and seriously raised and pursued by the revision petitioners was a contention of denial of the landlords' title to the building. In other words, it was the timultuous contention that the building itself belong to the tenant which was raised and pursued by him The tenants failed miserably in substantiating their contention. According to us, it will be most inequitable, having regard to rule 11(8) of the Kerala Buildings (Lease and Rent Control) Rules which provide that the Rent Control Court and the authorities under the statute shall be governed by the principles of justice, WP(C)N0. -12- equity and good conscience to allow the tenant to raise such a contention at this stage. The contention is without merits. Sri. Saidalikutty would seek one year's time to vacate the premises. We are not inclined to grant so much of time. At the same time we are of the view that time can be granted till 31-8- 2009 subject to the following conditions. 1. The revision petitioners shall file affidavit before the Munsiff's Court, Parappanangadi, the execution court stating that they will give peaceful surrender of the petition schedule building to the respondents on or before 31-8-2009 and that they will discharge arrears of rent if any accrued so far in respect of the building within one month of the date of filing of the affidavit and will continue to pay the rent which falls due subsequently till the date of actual surrender without fail. 2. If the execution court notices the filing of such affidavit within ten days from today that court will adjourn the execution petition whether pending or to be filed to 7-9- 2009. WP(C)N0. -13- ........counsel to take us to the pleadings in the case since we notice that the contention that the RCP was liable to be failed in view of possession of other lands by the landlords had not been taken before either of the authorities below. On going through the pleadings, it became obvious that such a contention was not taken by the revision petitioners at all. The law is that it is for the landlord to assert that the landlord has no other building in the possession of the landlord which disables the landlord from getting an order of eviction in view of Section 11(3) first proviso. When such an assertion is made by the landlord, it is for the tenant to contend by pointing out buildings ( or lands as in fact situation governed by the judgment in Ikkorakutty's case) that the petition is liable to fail on account of the landlord possessing such buildings or lands. The landlord's specific pleading is to the effect that they have no other building of their own in possession. PW1, the landlady would testify in her chief examination that the petitioners in the RCP have no building or land in which the projected need could be satisfied. We notice that the above assertion was not challenged in cross examination. It is brought out from PW2, defacto claimant that the families of the landlords have other extents of land. But here again despite lengthy cross examination, he is not specifically asked as to why those lands are not being utilised for accomplishing the avowed need of constructing new building. To allow the petitioner to raise contention based on the first proviso to Section 11(3) at this belated stage will result in serious prejudice to the respondents. More over as already indicated, the contention which was prominently and seriously raised by the revision petitioner and pursued by him was a contention of denial of the landlord's title over the building. In other words, it was the tumultuous contention that the WP(C)N0. -14- building itself belongs to the tenant was raised and pursued by him. The petitioners failed miserably in substantiating that contention. 4. We feel that it will be most inequitable having regard to Rule 11(8) of the Kerala Building (Lease and Rent Control) Rules which provide that the rent control court and the authorities under the statute shall be governed by the principles of justice, equity and conscience to allow a person like the petitioner to raise this contention at this belated stage. The revision petition is liable to fail. As his last submission, Sri.T.K.Saidalikutty sought for one years time to vacate the premises. In deference to the learned counsel who addressed apparently attractive arguments on the basis of a precedent which appears to be direct, we are inclined to issue notice to the respondent on the question of granting time. Issue notice on admission by special messenger to decide the question of granting time to vacate. Post on 16/01/2009. PIUS.C.KURIAKOSE JUDGE M.C.HARI RANI WP(C)N0. -15- JUDGE sv. PIUS.C.KURIAKOSE & M.C.HARI RANI, JJ. - - - - - - - - - - - - - - - - - - - - - R.C.R.No. 302 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of January, 2009 ORDER Pius.C.Kuriakose, J. Read our order dated 12/01/2009. Pursuant to that order, the respondent has been served with notice by special messenger and there is no appearance for him. Sri.T.K.Saidalikutty, learned counsel for the petitioner sought for one year's time to vacate the premises. We are not inclined to grant so much of time. However, we feel that there is justification for granting time till 31/08/2009 subject to the following conditions: 1) The petitioner shall file an undertaking in the form of an affidavit before the Munsiff Court, Parappanangadi in which WP(C)N0. -16- he shall state that he will give peaceful surrender of the petition schedule building to the respondents on or before 31/08/2009 and that he will discharge the entire arrears of rent so far accrued in respect of the building within one month and will continue to pay the rent RCR.No.14/09 2 which falls due subsequently till the date of surrender without fail. 3) Once the execution court notices the filing of such affidavit within the time, that court will adjourn the execution petition, if any filed or to be filed subsequently to 01/09/2009. PIUS.C.KURIAKOSE JUDGE M.C.HARI RANI JUDGE WP(C)N0. -17- sv. PIUS.C.KURIAKOSE & M.C.HARI RANI, JJ. ------------------------ R.C.R.No. 302 OF 2008 ------------------------ Dated this the 16th day of January, 2009 O R D E R Pius C.Kuriakose, J. Reasons for overruling the judgment of Justice K.Bhaskaran in Ikkorakutty v. Hariharan(1973 KLT 986) are as follows'; The learned Judge in that decision has taken the view that the Kerala Buildings (Lease & Rent Control) Act 1965 has been enacted with the objective of giving protection to the tenants, who according to the Judge, belong to the weaker section not possessed of their own building either for their residence or for carrying on their occupation, as the case may be. According to the learned Judge, the statute is based on the concept of tenancy on the tenants. The learned Judge in that decision has taken the view that the burden to establish the availability of sutiable WP(C)N0. -18- buildings in the context of the second proviso to Section 11(3) is that of the landlord. The learned Judge takes the view that the relevant point of time for determining the availability of suitable building in the context of the second proviso is the date of passage of the eviction order. The above views expressed by the learned Judge in Ikkorakutty's case(supra) will not hold in good any longer. The view of the learned Judge that the Rent Control Legislation is a welfare legislation for the tenant alone cannot be hold good any longer in view of the judgment of the Supreme Court in 1987 (3) SCC 576....which is to the effect that the Rent Control Court is a welfare legislation for the landlords also. Such a view has been virtually reported by the Supreme Court in subsequent decisions also 1992 (2) Supreme Court Cases 671.... The view of the learned Single Judge in Ikkorakutty's case (supra) regarding the burden of proof in the context of the second proviso to Section 11(3) and regarding the point of time materially for determining the availability of suitable building in the context of that proviso has been expressly overruled by a WP(C)N0. -19- Division Bench of this court in Kochappan Pillai v. Chelappan (1976 KLT (1) ) . The Division Bench in the Kochappan Pillai's case (supra) does not appear to have considered implications of the observations of the learned single judge in paragraph 10 of the judgment, which we have quoted herein before. The Division Bench has only referred to Section 11 (4) iv) and observed that provision of the first proviso to Section 11 (3) is confined to Section 11 (3) and its extension section 11 (4) (iv) is not permitted by the Act. We shall, therefore, proceed to consider whether in cases where the need projected under Section 11(3) is to pull down the existing building and to put up a new building for the landlord or his dependent family members. Need should be construed as a need for the site of the building alone and hence availability of alternate sites suitable for putting up buildings should entail disqualification in terms of the first proviso to Section 11 (3). The first proviso to Section 11 (3) reads as follows ; Provided that the Rent Control Court shall not give any such direction if the WP(C)N0. -20- landlord has another building of his own in his possession in the same city, town or village except where