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K.K. Krishnan Vs. M.K. Vijayaraghavan - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 3 of 1977-H
Judge
Reported inAIR1977Ker194
ActsKerala Buildings (Lease and Rent Control) Act, 1959 - Sections 11(3), 11(4), 11(7), 11(8) and 11(10)
AppellantK.K. Krishnan
RespondentM.K. Vijayaraghavan
Appellant Advocate K.S. Paripooranan and; C.S. Balagangadharan, Advs.
Respondent Advocate T.P. Kelu Nambiar, Adv.
DispositionRevision dismissed
Excerpt:
.....that in grounds under sub-sections (3) (4) (iv), (7), and (8) of section 11 the claim should be bona fide and it is necessary for the court to consider when these grounds are urged that they are not urged as ruse for eviction. for a better appreciation of the contention raised; section 11 (10) reads :10. the rent control court shall, if it is satisfied that the claim of the landlord under sub-sections (3), (4) (7) or sub-section (8) is bona fide make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the rent control court, and if the court is not so satisfied, it shall make an order rejecting the application. once the landlord proves subletting or a ground under section 11 (4) (ii), (iii) or (v) and the court is..........should have recorded a finding that the claim of the landlord for eviction on that ground was bona fide. this argument is based on section 11 (10) of the act. since this finding was absent, the order for eviction by the rent control court was set aside by the appellate authority and the case was remanded to the rent control court for fresh consideration. the landlord filed a revision before the district court. the district judge held that once the ground of sub-letting was proved, it has to be held that the claim of the landlord for eviction was bona fide. according to the district judge no separate finding regarding the bona fide nature of the claim was necessary. the district judge set aside the order of remand passed by the appellate authority and directed the said authority to.....
Judgment:
ORDER

V. Khalid, J.

1. This civil revision petition raises an interesting question regarding the interpretation of Section 11 (10) of the Kerala Buildings (Lease and Rent Control) Act, hereinafter referred to as the Act. The tenant is the revision petitioner and the landlord, the respondent. Eviction was sought on the grounds of arrears of rent and sub-letting. According to the landlord, the building was demised in 1947 on a rent of Rs. 330/-. Thereafter the building was renovated and the tenant agreed to pay an enhanced rent of Rs. 410 per mensem. According to the landlord, the tenant has sub-let portions of the building to one Ratnaswamy Reddiar and Netto after July, 1961.

2. The Rent Control Court ordered eviction under Section 11 (4) (i) of the Act on the ground of sub-letting. The tenant took the matter in appeal before the Appellate Authority as C. M. A. No. 69 of 1974. It was contended before the Appellate Authority that even if sub-letting was proved, the Rent Control Court should have recorded a finding that the claim of the landlord for eviction on that ground was bona fide. This argument is based on Section 11 (10) of the Act. Since this finding was absent, the order for eviction by the Rent Control Court was set aside by the appellate authority and the case was remanded to the Rent Control Court for fresh consideration. The landlord filed a revision before the District Court. The District Judge held that once the ground of sub-letting was proved, it has to be held that the claim of the landlord for eviction was bona fide. According to the District Judge no separate finding regarding the bona fide nature of the claim was necessary. The District Judge set aside the order of remand passed by the appellate authority and directed the said authority to dispose of the case on merits. Hence this revision.

3. The counsel for the petitioner contends that the District Judge has misunderstood the scope of Section 11 (10) of the Act. He relied upon a Division Bench decision of this Court reported in 1975 Ker LT 437 and of the Supreme Court reported in AIR 1963 SC 499, in support of his contention. I shall refer to these authorities presently and before doing so, I think it necessary to examine the scheme of the Act providing for eviction of the tenant.

4. The Act is a self-contained enactment. The rights available to the landlord under the general law are substantially curtailed by the provisions of this Act. The landlord cannot resort to a petition for eviction when there is a forfeiture of lease under the general law or where the lease expires by efflux of time or on other grounds by which a lease is determined. The Act, which is a piece of ameliorative legislation, seeks to confer additional benefits to tenants to protect them from unreasonable eviction. The preamble of the Act says that the Act is enacted to regulate leasing of buildings and to control the rent of such buildings in the State of Kerala. Section 11 of the Act deals with the grounds on which eviction can be sought by a landlord. Section 11 (1) provides that a tenant under the Act shall not be evicted except in accordance with the provisions of the Act. Under Section 11 (2), a Rent Control Court can order eviction if it is satisfied that the tenant has not paid or tendered the rent due by him during the statutory period mentioned therein. Under Section 11 (2) (c) an order of eviction on arrears of rent can be averted by the tenant on deposit of the arrears of rent with interest and costs of the proceedings. Therefore under Section 11 (2) all that the landlord has to establish is that there are arrears of rent. Under Section 11 (3) the landlord can apply to the Rent Control Court for directing the tenant to be evicted if the landlord bona fide needs the building for his own occupation or for the occupation of any member of his family dependent on him. An order under this sub-section is subject to certain restrictions contained in the provisos to that section. Section 11 (3) involves adjudication of the need put forward by the landlord in the context of the bona fides of the need. Section 11 (4) contains five sub-sections; each sub-section by itself affords a ground for eviction. In Sub-section (1) a tenant could be evicted if he sub-lets the building (entire or a portion thereof), or transfers his right under the lease; under Sub-section (2) if the tenant uses the building in such a manner as to destroy or reduce its value or utility materially and permanently; under Sub-section (3) if the tenant has already in his possession a building or subsequently acquires possession of or puts up a building reasonably sufficient for his requirement and under Sub-section (5) if the tenant ceases to occupy the building continuously for six months without reasonable cause. Therefore, Sub-sections (1), (2), (3) and (5) deal with proof of allegations of sub-tenancy, damage, tenant having another building or tenant ceasing to occupy the building continuously for a period of six months. In none of these cases, does an element of bona fides enter. As the sub-sections stand, the duty of the landlord is to prove to the satisfaction of the Rent Control Court or the higher tribunals, the averments in the petition substantiating the ground or grounds on which eviction is sought. However, Clause (iv) of Section 11 (4) is worded differently. As per this clause a landlord can seek eviction of a tenant from building if the building is in such a condition that it needs re-construction and if the landlord requires the building bona fide for reconstruction. The landlord has to substantiate among other things that he has the ability to re-build and the proposal for re-construction is not made as a pretext for eviction. Therefore, under Clause (iv) of Section 11 (4), not only docs an element of bona fide step in, but the landlord has to prove his ability to re-build, and what is more, that the proposal is not made as a pretext for eviction. Sub-sections (5) and (6) deal with the renovation of the building. Eviction is not involved under these subsections. Sub-section (7) deals with religious, charitable, educational or other institutions who own buildings and who are entitled to sue for eviction if they need the building for the purpose of their institutions. In this need again, an element of bana fides automatically steps in. In Sub-section (8) a landlord who is occupying only a part of the building can apply for eviction of a tenant occupying the remaining portion of the building. This requirement is subject to a proviso regarding comparative advantage and hardship of the landlord and the tenant. In this also, the Court should find that the claim is bona fide. What I would like to emphasise is, that in grounds under Sub-sections (3) (4) (iv), (7), and (8) of Section 11 the claim should be bona fide and it is necessary for the Court to consider when these grounds are urged that they are not urged as ruse for eviction. The sections thus postulate or contemplate an investigation of the grounds on which eviction is sought against the back-ground of the bona fide nature of the claim. The same is not the case with Sub-section (4) (i), (ii) (iii) and (v) of Section 11. in Sub-section 11 (4) (i), a landlord has only to prove sub-lease or transfer of possession, under Sub-section (4) (ii) of Section 11, that the tenant has damaged the building under Sub-section (4) (iii) that the tenant has in his possession another building and under Sub-section (4) (v) that the tenant has ceased to occupy the building continuously for six months without reasonable cause. When these grounds are satisfactorily established, it is not necessary for the landlord to additionally prove that his claim for eviction is bona fide. He gets the right to evict the tenant because the tenant has done something contrary to the contract and contrary to law. When he gets an order of eviction on these grounds, he can lease out the property to any one as he likes, and his right to lease it out is not controlled by any section. This is not the case where eviction is obtained under Section 11 (3) Or 11 (4) fiv). In these cases, there are certain fetters on the landlord created by the section itself; not so in cases falling under the above sub-sections. The very fact that the landlord proves the grounds contained in the above sub-section renders the claim, according to me, bona fide. It is against this background that Section 11 (10) on which reliance is placed by the petitioner's counsel has to be understood.

5. What is contended is that Section 11 (10) lays down a mandate on the Rent Control Court, the Appellate Authority and the Revisional Court to enter a finding that the claim is bona fide before ordering eviction under grounds contained in Section 11 (3), (4), (7) and (8) of the Act. For a better appreciation of the contention raised;it is useful to read the. section. Section 11 (10) reads :

'10. The Rent Control Court shall, if it is satisfied that the claim of the landlord under Sub-sections (3), (4) (7) or Sub-section (8) is bona fide make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the Rent Control Court, and if the Court is not so satisfied, it shall make an order rejecting the application.'

6. Counsel for the petitioner contends that even if the landlord establishes a case of sub-letting and the Court accepts the said case, an order for eviction cannot be passed unless the said Court records a finding that the claim for eviction based on sub-letting is bona fide. This is because Section 11 (10) takes within its ambit Section 11 (4) and the ground of sub-letting is provided in Section 11 (4) (i). The same argument applies when eviction is sought under Section 11 (7) or 11 (8). We are here concerned about the ground of sub-letting. The Rent Control Court found the ground of sub-letting as pleaded by the landlord to be true. But the Rent Control Court did not record a finding that the claim for eviction was bona fide. This persuaded the appellate authority to remit the case to the Rent Control Court. According to me, the remand was not proper. Once the landlord proves subletting or a ground under Section 11 (4) (ii), (iii) or (v) and the Court is satisfied about it, the landlord is entitled, as of right, to get eviction. It does not stand to reason that the Legislature would have intended the landlord to establish further that his claim for eviction based on this ground is bona fide. If that be so, there need be only one ground and that is, the landlord required the building bona fide for his own occupation.

7. Strong reliance was placed on a Division Bench ruling of this Court reported in 1975 Ker LT 437. That was a case where the landlord sought eviction under Section 11 (7) of the Act- The Division Bench held that the Rent Control Court is under an obligation to investigate the bona fides of the claim put forward by the landlord under Sub-section (7) and can reject the application if it is not satisfied that the claim is bona fide. The Tribunal, which orders eviction has to respect the mandate contained under Section 11 (10) of the Act. Section 11 (7) speaks of bona fide requirement of the landlord which is a religious or charitable institution. Sometimes a claim under Section 11 (7) can be put forward as a ruse for eviction. It is for this reason that it has been enacted that the Rent Control Court and the Appellate Authority should be satisfied about the bona fide claim put forward by the landlord. This safeguard is intended to protect the tenant and is in conformity with the object of the Act. Cases are not rare where the landlord with the avowed object of evicting the tenant in possession, seeks eviction under some pretext and after obtaining delivery, leases it to another for highter rent. It is to avoid such misuse that Section 11 (7) contains a further in-built safeguard under which the landlord has to satisfy the court about the bona fides of the claim,

8. The ratio of the above decision cannot be applied in this case because here we are not dealing with an eviction order under Section 11 (7) of the Act. We are here dealing with an eviction order under Section 11 (4) (i) of the Act.

9. The petitioner's counsel leaned heavily on the decision of the Supreme Court reported in AIR 1963 SC 499, where the Supreme Court was dealing with a cognate enactment. The ground in that case was bona fide needed for reconstruction. The Supreme Court observed that in cases of orders for eviction, for re-construction, it is not enough that the landlord satisfies the Court that re-ronstruction is necessary, but he will have to satisfy the Court further that the claim is bona fide. I will usefully extract the following from the judgment (at p. 502) :

'Before a landlord can obtain an order for ejectment of his tenant on ground of his requirement for reconstruction of a house, he must satisfy the Rent Controller about genuineness of his claim and this can only be established by looking at all the surrounding circumstances, such as the condition of the building, its situation, the possibility of its being put to a more profitable use after construction, the means of the landlord and so on. It is not enough that the landlord comes forward, and says that he entertains a particular intention, however strongly, said to be entertained by him. Section 13 (3) (b) of the Pep.su Urban' Rent Restriction Ordinance speaks not of the bona fides of the landlord, but says, on the other hand, that the claim of the landlord that he requires the building for reconstruction and re-erection must be bona fide, that is to say, honest in the circumstances. It is impossible, therefore, to hold that the investigation by the Controller should be confined only to the existence of an intention in the mind of the landlord to reconstruct. This intention must be honestly held in relation to the surrounding circumstances.''

The principle enunciated in this decision is serviceable only when the ground urged is bona fide requirement for re-construction. This again does not have any bearing on the cases on hand.

10. These authorities, which are binding on me, can apply only if Section 11 (10) applies to the present case. Each case has to be decided on its own facts. This case, according to me, can be easily distinguished from the cases referred to above. While doing so, I cannot close my eyes to the fact that Section 11 (10) takes within its ambit the whole of Sub-section (4) of Section 11. I will have to adopt a harmonious construction of the different sections in the Act in dealing with the section. It is significant to note that the ground of arrears of rent is not included in Section ll (10) of the Act. The difficulty arises since Section 11 (10) takes in Section 11 (4) of the Act which sub-section has five sub-clauses. The question that arises is as to what is meant by the claim being bona fide when a landlord proves and satisfactorily establishes the grounds mentioned in Section 11 (4) (i), (ii), (iii) and (v). If Section 11 (10) is to bo applied to Clauses (i), (ii), (iii) or (v) of Section 11 (4), then it will lead to very unhappy results. What the legislature intended by enacting Section 11 (10) including the entire Section 11 (4) can only be to include Section 11 (4) (iv) and not the other clauses of that subsection. This is the only possible construction that can be given to Section 11 (10). I do not know whether I will be justified in saying that Section ll (10) as a whole is a eurplusage because in petitions under Sections 11 (3), 11 (4) (iv), 11 (7) and 11 (8) the ingredient of bona fide has necessarily to be proved. The order for eviction can be made only if the concerned authority is satisfied that the claim is bona fide. Perhaps, under these circumstances, Section 11 (10) could have been avoided. But since this section remains on the statute book, I have to explain it in a reasonable and harmonious manner. To say that the Legislature intended only to include Section 11 (4) (iv) in Section 11 (10) as was contended by the respondent's counsel, may perhaps expose me to the charge of 'udi-cial legislation. I very strongly feel that the Legislature could have oniv meant Section 11 (4) (iv) when it included S, 11 (4) in Section 11 (10). However, on the section as it now stands I would hold that when a landlord establishes the ground of subletting as also the grounds under Section 11 (4) (ii), (iii) and (v), to the satisfaction of the Court, that by itself is proof that the claim is bona fide. I would rest my conclusion on this construction and meet the requirement of Section 11 (10).

11. The principles governing interpretation of statutes in such cases are well settled. A particular statute should be so construed as to carry out effectually its object and to defeat all attempts to contradict or in a circuitous manner to do, what it prohibits. A construction to narrow down the language of a statute and to allow persons to escape from within its purview should not be encouraged. It is not the mere form of the language but the substance that has to be given weight. No attempt to abuse the power conferred by a statute should also be encouraged. It will be the domain of the Court to enquire into the bona fides or proper exercise of a statutory power. The Legislature should always be supposed not to have intended to contradict itself and therefore in construing a particular section the Court will always endeavour to construe the language of a statute in such a way as to avoid contradictions. It is also settled rule of interpretation of statutes that a construction most agreeable to justice and reason should be adopted in construing the provisions of a statute. No statute should be construed as to produce wholly unreasonable or inconvenient result.

12. If these principles are kept in mind, it will be clear that to include the entire sub-section (4) of Section 11 within the ambit of Section 11 (10) will be an abuse of power conferred by the section and thus to create unreasonable and inconvenient results and also to defeat the object of the enactment.

13. The revisional Court, according to me, acted with propriety in remanding the case back to the appellate authority to decide the case on merits. The C.R.P. is dismissed. I direct the parties to bear their costs.

14. Since Section 11 (10) as it now stands causes unhappy consequences, it is for the Legislature to consider whether the said sub-section is necessary. Anyway, it is for the Legislature to make it clear whether by including Section 11 (4) in Section 11 (10), the Legislature intended to include all the clauses in Section 11 (4) or only Clause (iv) in Section 11 (4). The matter can be clarified only by the Legislature.

A copy of this judgment will be communicated to the Chief Secretary to the Government of Kerala, under the seal of the High Court and the signature of the Registrar.


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