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C. Thanka and ors. Vs. Narayani - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKerala High Court
Decided On
Case NumberC.R.P. Nos. 455, 456, 460, 461, 488, 489, 535 and 536 of 1980
Judge
Reported inAIR1981Ker261
ActsKerala Buildings (Lease and Rent Control) Act, 1965 - Sections 11(1) and 11(4)
AppellantC. Thanka and ors.
RespondentNarayani
Appellant Advocate C.P. Damodaran Nayar,; M.K. Chandramohandas and; D. Kris
Respondent Advocate M.K. Kumaran and; N.V. Ramachandram, Advs.
DispositionPetitions dismissed
Cases ReferredQuasim v. Manohar Lal
Excerpt:
.....documents had yet to be registered and that in law, the mother continued to be the owner of the buildings. a landlord may be very rich and he may like to reconstruct rather than repair or renovate; still, as i read section 11 (4) (iv), what is fundamental is the physical condition of the building, 8. as to social conditions, there are opinions to the effect that where the locality is a fast developing one, with more and more modern buildings coming up to house educational institutions, banks, public offices, hospitals and the like, an old-fashioned building in the tenants' occupation should be allowed to be pulled down even if its physical condition is not so bad, it has also been said that the landlord's desire to put his property to better use is relevant. doctrines relating to..........buildings in koor-kancherry panchayat, on the outskirts of trichur town, occupied by eleven different tenants. the rent control court allowed her petitions for evicting them on the ground of bona fide requirement to reconstruct, and the decision was upheld by the appellate authority and by the district court. eight of the tenants have now come up in revision under section 115 of the code of civil procedure.2. in proceedings under sub-section (4) (iv) of section 11 of act 2 of 1995, the first thing to be looked into by a court is the condition of the building (or buildings). if the condition is such that it needs reconstruction, the next question will be about the bona fide nature of the landlord's requirement. the court has also to satisfy itself that the plan and the licence, if.....
Judgment:
ORDER

M.P. Menon, J.

1. Tenants in Rent Control proceedings are the petitioners, and the common respondent, the landlord. The landlord has three buildings in Koor-kancherry Panchayat, on the outskirts of Trichur Town, occupied by eleven different tenants. The Rent Control Court allowed her petitions for evicting them on the ground of bona fide requirement to reconstruct, and the decision was upheld by the appellate authority and by the District Court. Eight of the tenants have now come up in revision under Section 115 of the Code of Civil Procedure.

2. In proceedings under Sub-section (4) (iv) of Section 11 of Act 2 of 1995, the first thing to be looked into by a court is the condition of the building (or buildings). If the condition is such that it needs reconstruction, the next question will be about the bona fide nature of the landlord's requirement. The court has also to satisfy itself that the plan and the licence, if required, are there, that the landlord has the ability to rebuild and that reconstruction is not put forward as a pretext. Severe restrictions are thus imposed on the right of a landlord to reconstruct, in the interests of the tenants; and the three provisos add to their rigour. Still the findings regarding the condition of the buillding. the bona fide nature of the landlord's requirement and the other things specified in the statute are findings of fact. The Rent Control Court and the appellate authority are primarily responsible for such findings, the revisional power of the District Court under Section 20 being essentially supervisory, to be exercised in those rare cases where the appellate order is illegal, irregular or improper and leads to miscarriage of justice. The scope for interference by this Court under Section 115, C. P. C. is even more limited.

3. The following contentions are raised on behalf of the tenants :--

(i) the Rent Control petitions do not contain the necessary pleadings;

(ii) there is no finding regarding the bona fide nature of the landlord's requirement;

(iii) there is evidence to show that the landlord has no subsisting title;

(iv) on the materials available, the only view possible is that the buildings require some repair, but not reconstruction;

(v) the courts below have attached more importance to the conditions of the locality and its needs, than to the condition of the building; and

(vi) at any rate, the plan produced discloses that the landlord's attempt is to defeat the tenants' rights under the third proviso to Section 11 (4) (iv).

4. The pleadings in all the Rent Control petitions on the point in dispute were identical. The case set up was that the buildings had suffered severe damage, and that they were situated in a fast-developing locality where a more modern building, giving a better return to the landlord, would be desirable. I am in agreement with counsel for the petitioners that something more than a vague reference to damage was necessary in a case like this, even if it was not necessary to assert that the buildings were in danger. Some specific features relating to the condition of the buildings, having a nexus with the need to reconstruct, should have been set out, and in this view, the pleadings were defective. But the law of pleadings cannot be strictly applied to proceedings before tribunals. It is seen that the parties were at issue on all the relevant requirements of the statute and that they were allowed to adduce all relevant evidence. It cannot be said that the tenants were prejudiced by a subsequent development of the landlord's case. The point does not also appear to have been raised before the three authorities below. I am therefore not inclined to interfere on the ground of insufficiency of pleadings.

5. Paragraphs (23) to (28) of the Rent Control Court's order show that specific findings have been recorded on the bona fide nature of the landlord's requirement, as also on all other conditions to be satisfied, before ordering eviction. The appellate authority and the District Court have both done likewise. Point No. (ii) is thus clearly unsustainable.

6. On the question of title raised under point No. (iii). it is seen that P. W. 1, the landlord's daughter, had at one stage stated that the mother had given the properties to the children, But she had also clearly asserted that documents had yet to be registered and that in law, the mother continued to be the owner of the buildings. If the tenants had any dispute regarding title, they should have raised it, under the. 2nd proviso to Section 11 (i), before the Rent Control Court. That court would then have entered a finding as to whether the denial of title was bona fide or not. No such contention was raised before the Rent Control Court (or even the appellate authority); and to entertain it at this stage so as to occasion a remand will not only be unjust, but also apparently futile, Faced with this situation, counsel for the tenants suggested that a person who has lost interest in the property or building could not bona fide require its reconstruction at all. But as noticed earlier, the mother continues to be the landlord for the purposes of Section 11 (4), even if the definition in Section 2 (3) is read along with Section 11 (16): and there is also no case that the daughters are not supporting the mother's move, This point also therefore fails.

7. Turning to points (iv) and (v). it is important to note that the statute speaks of

(i) the condition of the building in the context of the need to reconstruct it; and

(ii) the bona fide nature of the landlord's requirement in the matter of reconstruction.

The two are different though related. There is a view that 'condition' includes not only physical condition, but also 'social condition' of the building i.e. its relevance for continued existence in the social set up of the locality. I shall examine it separately; suffice it to say that even this view does not suggest that the physical condition is unimportant. What then is the physical condition of a building relatable to the need for reconstructing it The extreme view that such a need cannot arise except when the building is in imminent danger of falling down, has not received general approval. All the same, is it sufficient to show that the building is somewhat old, that a few of the rafters are damaged, that the walls have cracked in places and that the, doors and windows are hanging on defective hinges? These may indicate a need for repair or even renovation, but not reconstruction. If the tenant has used the building in such a manner as to destroy or reduce its value or utility, Clause (ii) of Sub-section (4) may be attracted; and if what is required is renovation, Sub-section (5) can be invoked. The need to be established under Section 11 (4) (iv) is different, and has to be examined from a different stand point. Despite the efforts of Housing Boards, Development Authorities and other bodies set up by the State, housing continues to be a serious problem in the urban and semi-urban area of our State. Building materials are scarce and funds insufficient. To allow a building to be pulled down where it could, with repair or renovation, continue to accommodate the tenant for a decade or more, simply because the landlord has the capacity and desire to rebuild, will be to forget the true scope of the enactment and even the realities of the situation. In my opinion, one has to look at the condition of the building more closely. What are the materials used for its construction? What is the extent and nature of the damage noticed? Are the cracks superficial, or are they more deep? How old is the building, and will it be able to serve its present purpose for a further period of time, if repairs are undertaken? A landlord may be very rich and he may like to reconstruct rather than repair or renovate; but it is not his desire or the size of his purse, examined from the stand point of an investor, that matters. As often said by courts, you have to adopt the standard of the average man. Look at the condition of the building, examine each feature carefully and then decide whether the existing structure is to be pulled down, even if it means that the tenant has to get out temporarily or otherwise, keeping in mind that you are administering a law where the tenant is the beloved of the legislature. Unfortunately, however, what is happening in many cases is that a Commissioner reports that the building is 30 or 40 years old, that the walls are all cracked, that tiles are broken, that the roof is damaged, that the locality is developing and that the landlord has the capacity to put up a massive concrete structure adding to the architectural beauty of the locality; and the Rent Control Authorities rely on such a report to allow the landlord's request. The distinction between repair and reconstruction, the connection to be established between the condition of the building and the need to reconstruct, the balance to be struck between the landlord's desire and the need to protect the tenant, are often forgotten. The landlord's desire may be bona fide, he may be ready with money, plan and licence, it may even be reasonable to permit reconstruction from the point of view of the return he could get; still, as I read Section 11 (4) (iv), what is fundamental is the physical condition of the building,

8. As to social conditions, there are opinions to the effect that where the locality is a fast developing one, with more and more modern buildings coming up to house educational institutions, banks, public offices, hospitals and the like, an old-fashioned building in the tenants' occupation should be allowed to be pulled down even if its physical condition is not so bad, It has also been said that the landlord's desire to put his property to better use is relevant. The argument is that rent control laws are not designed to block all-round development. The short answer I would furnish is that such legislations are also not designed to further develop-mental activities. Act 2 of 1965 is basically concerned with protecting tenants against unreasonable eviction and extraction of exorbitant rates of rent, during a period of acute housing shortage. Doctrines relating to social conditions, nature of the locality, need for development and fair return on investment were all no doubt originally evolved On considerations of public good; but they are apt to be extended by a process of reasoning which may lose sight of their origin. If it is not the function of the court to sugar a pill which the legislature considers bitter, I for one would hesitate to apply such doctrines for ordering a tenant out. When the legislature wants you to look at the condition of a building for deciding whether it needs reconstruction, the word 'condition' has to be understood in its ordinary sense i.e. circumstances essential to a thing's existence. At any rate, you cannot look, at it like a town-planner or an investor. Conditions surrounding the building are not the same as the condition of the building. It may not be difficult to show, with reference to many are as of our State, that a bank has established a branch, that a workshop has come into existence, that a new school has been opened and that ultra-modern concrete structures are coming up at places not far distant from the building occupied by a tenant. To inflate, these circumstances into importance and tot ignore the requirement of rational connection between the building's physical condition and the proposal to reconstruct, will be to create an area ill-lit by the statute, unsuryeyed by the lawmakers and therefore unsuitable for exploration by the judicial process.

9. Under Section 2 (6) of Act 2 of 1965, a Kudikidappukaran as defined in the Land Reforms Act (Kerala Act 1 of 1964) is not a tenant. His hut may be an eye-sore to the locality, but the rent control authorities can do nothing in the matter, It is not uncommon to find such huts marring the beauty of many a municipal town or city. The provisions of Act 1 of 1964 which contemplate the 'shifting' of such huts under certain conditions may be an instance where the legislature has thought of the need for developing such localities; but in the absence of some such provision furnishing a clue to the existence of a similar intention behind Act 2 of 1965, the rent control authorities will not be justified in calling upon the tenants brought before them to engage themselves in a hopeless struggle against the fervour for development. The nature of the locality, the size of the landlord's bank balance and the attractive features of the new edifice proposed may have relevance to the question of the landlord's bona fides; but these cannot be decisive in assessing the need to reconstruct the existing building,

10. No doubt, there are observations in some of the decisions of the Supreme Court that the surrounding circumstances and the landlord's desire to put his property to more profitable use, would be relevant under certain circumstances; but the statutory provisions examined and the contentions dealt with were different. Section 13 (3) of the Pepsu enactment, considered by their Lordships in Neta Ram v. Jiwan Lal. (AIR 1963 SC 499) provided that a landlord could seek eviction if 'he requires it for reconstruction' and his 'claim' was bona fide, An argument was advanced that the statute required an investigation only into the bona fides of the landlord's requirement and into no other circumstances. This was firmly rejected by the court by pointing out that what was relevant was the bona fides of the 'claim', and not the bona fides of the landlord. Claim, in the context, could include an enquiry into the condition of the building and the surrounding circumstances. It was observed (at P. 502) :--

'It is well known that Rent Restriction Acts were passed in view of the shortage of houses and the high rents which were being demanded by landlords. The very purpose of the Rent Restriction Acts would be defeated, if the landlords were to come forward and to get tenants turned out, on the, bare plea that they want to reconstruct the houses, without first establishing that the plea is bona fide with regard to all the circumstances, viz., that the houses need reconstruction or that they have the means to reconstruct them, etc.'

Again, what arose for consideration in P. N. Shenoy v. B. V. Shenoy (AIR 1971 SC 942) was proviso (j) to Section 21 (1) of Mysore Act 22/61 which permitted a landlord to seek eviction if the premises were 'reasonably and bona fide required' for demolition and reconstruction. It was argued, relying on Neta Ram (AIR 1963 SC 499), that an enquiry into the reasonableness of the landlord's requirement should cover an enquiry into the condition of the building. But Vaidyalingam, J. said that (at p. 944):

'The requirement contemplated under Clause (j) of the proviso to Sub-section (1) is that of the landlord and it does not have any relevance to the condition of the building.'

In other words, condition of the building was irrelevant unless specifically mentioned by the statute. But Section 11 (4) (iv) of our enactment does specifically refer to the condition of the building, and what is more, the legislature insists that that is the test to decide whether the building needs reconstruction. The bona fides of the landlord's desire is something to be separately considered. The two decisions do not support the general proposition that irrespective of the language of the statute, condition of the building could include conditions of the locality and the landlord's desire to earn more profits,

11. The approach made by the Supreme Court in Neta Ram (AIR 1983 SC 499) only shows how important it is to keep in mind the very purpose of Rent Restriction Acts, while dealing with cases arising thereunder. The more recent decision of the Court in M. M, Quasim v. Manohar Lal (AIR 1981 SC 1113) again emphasises this aspect. Dealing with a contention that a tenant could not advise his landlord to occupy a building which is about to fall vacant, instead of trying to disturb him, the court said (at P. 1121):

'It would, however, be a bald statement unsupported by the Rent Act to say that the landlord has an unfettered right to choose whatever premises he wants and that too irrespective of the fact that he has some vacant premises in possession which he would not occupy and try to seek to remove the tenant. This approach would put a premium on the landlord's greed to throw out tenants paying lower rent in the name of personal occupation and rent out the premises in his possession at the market rate. To curb this very tendency the Rent Act was enacted and, therefore, it becomes the duty of the Court administering the Rent Act to bear in mind the object and intendment of the legislature in enacting the same. The Court must understand and appreciate the relationship between legal rules and one of necessities of life -- shelter -- and the way in which one part of the society exacts tribute from another for permission to inhabit a portion of the globe.'

This authoritative pronouncement must be sufficient to alert the rent control tribunals to the gravity of the problem they are there to grapple with. The problem is one of shelter, of putting a roof over the heads of human beings, and there is a duty to show sympathy for the legislative intent. There may be cases where the tenants are recalcitrant; they may question the landlord's title, contend that the building is a kudikidappu. advise him to go and live with his son-in-law, and even accuse him of having won over the commissioner appointed for local inspection. These may evoke sympathy for the landlord, but where the legislative sympathy is on the other side, that has to be given effect to. One cannot simultaneously sympathise with the assassin and his victim at least in matters like this.

12. So much for the legal principles. As to the facts of the case on hand, it is seen that in para (26) of its order, the Rent Control Court has entered a clear finding that 'the physical condition of the buildings is such that they require reconstruction.' This finding is seen upheld in para (8) of the appellate authority's order. It may be that the Rent Control Court has somewhat mixed up the condition of the building with the conditions around it in the course of its discussion, but the same cannot be said about the appellate order. And the District Court has also expressed its view on the physical conditions as disclosed by the Commissioner's report. This is not a case where all the authorities below have paid more attention to the surrounding circumstances than to the condition of the buildings. The question then is whether the finding regarding physical conditions, geared to the need for reconstruction, is something that no person reasonably instructed in law could have recorded, on the material available,

13. Mr. Damodoran Nayar for the tenants attempted to high-light the circumstance that while the three buildings were 30, 50 and 60 years old according to the Commissioner, it was clearly admitted by P. W. 1 that all the three were put up about 15 years ago. The appellate authority and the revisional court have dealt with this objection. The buildings are made of mud and stone, without lime, mortar or cement. The roofs are in disrepair, and are leaking. It is therefore possible that the buildings appeared to be more aged than what they really are. Even if I were to sit as an appellate court, I think the report and evidence of the Commissioner contain sufficient material to hold that at least two of the three buildings are beyond redemption, Since the proposal is to replace the three buildings with two bigger buildings, all the three existing structures will have to be pulled down. Counsel tried to go one step further and contend that the Commissioner, a lady advocate on the threshold of the profession, was totally unequal to the task, But her evidence and the report show that she had collected all the relevant data, and that she was as well-equipped, at least as an ordinary man or woman, to report about the physical condition of the buildings. The circumstance that P. W. 1 and P. W. 2 did not specifically refer to the condition of the buildings, is also insufficient to justify interference under Section 115.

14. On the last point raised, the argument was that the two new buildings were so designed as to make it impossible for the tenants to exercise their option under the 3rd proviso to Section 11 (4) (iv). Admittedly no such point was raised before any of the authorities below. This complaint also requires investigation of facts. The Rent Controller has directed that the tenants should be allotted the same area as they are now occupying, in the new structures; and that is an indication that the impossibility apprehended by the tenants is not real.

For the reasons stated above, the revision petitions are dismissed. The petitioners will howepver be given six weeks' time to vacate. Parties will suffer their costs throughout.


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