Full Judgment Text
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CASE NO.:
Appeal (civil) 6347 of 2005
PETITIONER:
Kunhamma @ Lakshmi Ammas Children & Anr
RESPONDENT:
Akkali Purushothaman & Ors
DATE OF JUDGMENT: 12/04/2007
BENCH:
B.P. Singh & Harjit Singh Bedi
JUDGMENT:
J U D G M E N T
HARJIT SINGH BEDI,J
This appeal by special leave arises out of the following facts:
The petitioners before the Rent Controller (brother and
sisters respectively) are the owners of the premises in question.
On 1.1.1984 by an oral agreement, the premises were rented out
to the appellant/tenants herein for a period of three months, by
the original sole landlord Akkali Purushothaman.
On 23.4.1991 Akkali Purushothaman gifted the demised
premises to his two sisters. These premises consisted of just one
room situated in front of another residential building belonging
to the two sisters. The three landlords thereafter filed a petition
for the ejectment of the tenant(s) under Sections 11(2), 11(3)
and 11(4) (i) of the Kerala Buildings (Lease and Rent Control) Act
1965 (hereinafter called the ’Act’) alleging therein that the tenant
was in arrears of rent, that he had sub-leased the premises
without the knowledge or consent of the landlords and finally
that the sisters needed the premises for their own use and
occupation as it had to be demolished to widen the pathway
leading to the building that was situated behind the demised
premises. The issues raised by the landlords were controverted
by the tenant, who pleaded that the room had been let out to him
on 1.1.1982, that there were no arrears of rent as claimed, that
no sub-lease had been created, that there was no other suitable
place to which he could shift his business as his only source of
income was generated from the demised premises and, finally,
that the landlord’s plea that the premises had to be demolished
to widen the pathway did not constitute personal necessity. On
the pleadings of the parties, the Rent Controller framed the
following points for determination:
1. Whether the petitioners are entitled for an
eviction as prayed under Section 11(2) of the Act?
2. Whether the petitioners are entitled for an
eviction as prayed under Section 11(3) of the Act?
3. Whether the petitioners are entitled for an
eviction as prayed for under Section 11(4) of the
Act?
4. Relief and costs.
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The Rent Controller in his judgment dated 29th June 1995
held that the tenant was in arrears of rent and was therefore
liable to ejectment under Section 11(2) of the Act. On point No.2,
the Rent Controller observed that the two sisters were residing in
a rented building at Kannur and that they intended to shift to
their own residential house situated behind the demised
premises and that for their convenient and beneficial stay the
existing pathway, which was only 3.5 feet wide, had to be
widened and that Section 11(3) of the Act would also apply to a
case where the landlord bona fide required the rented building
for its demolition so as to facilitate the ingress and egress to
another residential building belonging to him. The Rent
Controller rejected the plea of the tenant that he was solely
dependent on the income derived from the business conducted
from the demised premises observing that he was, in fact, an
autorickshaw driver and owned atleast one if not two such
vehicles. His plea that the autorickshaws belonged to one Anil
was rejected by observing that he had not been examined as a
witness. The tenant’s ancillary submission that he had been
unable to find suitable accommodation for relocating himself on
account of very high rents was also not accepted as he had been
unable to show as to the enquiries that he had made in this
regard. Point No.3 was given up by the landlord but as a result
of the discussion on point Nos. 1 and 2, the Rent Controller
allowed the petition and ordered ejectment under sections 11(2)
and 11(3) of the Act. The tenant thereupon filed an appeal
before the appellate authority which in its order dated 5th June,
1998 observed that the entire arrears of rent till date had, in the
meanwhile, been paid and as such the only issue that now
survived was with regard to the ejectment ordered under Section
11(3). The appellate authority on a re-assessment of the
evidence held that the plea of bona fide personal necessity was
not made out as the residential building to which the sisters
wanted to shift had been rented out to college students and that
there was no suggestion that the landlords had taken any steps
to secure its vacant possession. It was also observed that the
two sisters had not even appeared as witnesses to depose as to
their bona fide personal need as only their brother, the original
landlord, had appeared as PW.1. The appellate authority
accordingly allowed the appeal and dismissed the ejectment
application. The landlords thereupon preferred a revision
petition before the High Court which has been allowed with the
finding that the landlords had been able to prove their bonafide
need as envisaged under Section 11 (3) of the Act. The tenants
are in appeal before us.
The learned counsel for the appellants has urged that a
bare perusal of Section 11(3) of the Act would show that the bona
fide need visualized therein had to be equated with physical
occupation of the premises by the landlord after ejectment and
would therefore not include its demolition for the purpose of
widening a passage to another property belonging to the
landlord. It has also been pleaded that the appellant had no
alternative accommodation available to him which was suitable
to his needs and that his only source of income was generated
from the business conducted from the solitary room which
constituted the demised premises and for this reason too the
order under challenge was not sustainable. The learned counsel
for the respondents has however supported the judgment and
order of the High Court and has placed reliance on a judgment of
this Court in Ramniklal Pitambardas Mehta Vs. Indradaman
Amratlal Sheth ( AIR 1964 SC 1676 ) a judgment of the
Kerala High Court reported as 1969 KLT 133 (Sarada & Others
vs. M.K.Kumaran) and the judgment of the Privy Council
reported as 1956 All England Law Reports 262 ( Mckenna and
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Anr. Vs. Porter Motors Ltd.) to contend that the "use and
occupation" envisaged under Section 11(3) would include a
demolition of the demised premises so as to widen a pathway for
another building belonging to the landlord. The learned counsel
has also referred to 1988 (1) KLT 131 (Krishna Menon vs.
District Judge ) to submit that the word "building" occurring in
Section 2(1) of the Act included gardens, grounds etc. which
were appurtenant to a building and that the definition had been
kept flexible in order to meet the numerous and varied exigencies
which may arise in individual cases.
We have considered the arguments advanced by the learned
counsel in the light of the law and the facts brought out before
us. It is virtually the accepted position since long that the
personal necessity envisaged under the Act would include re-
possession of the demised premises by the landlord for the
purposes of its demolition so as to widen the entrance to another
building belonging to the landlord in the immediate vicinity. In
Ramniklal Pitambardas Mehta’s case (supra) it was observed as
under:-
"Occupation of the premises in clause
(g) does not necessarily refer to occupation
as residence. The owner can occupy a place
by making use of it in any manner. In a
case like the present, if the plaintiffs on
getting possession start their work of
demolition within the prescribed period,
they would have occupied the premises in
order to erect a building fit for their
occupation."
The observations of the Privy Council are much to the same
effect. In K. Menon’s case (supra) the court reinforced its
opinion by an analogy and by putting a hypothetical question to
itself:
"Can he not use the space occupied
by the old building as car park, or as
passage to the new building? If he
cannot do so, the entire rear portion
may become practically useless. This
would be one of the hard consequences
if S.11 (3) of the Act is given a narrow or
strict interpretation. Such consequences
can be averted if S. 11(3) is given a
wider interpretation".
The Court thereafter reiterated the judgment of the High
Court in Sarada’s case (supra). The Court also observed that
the preponderance of opinion of the Court was in favour of the
above construction and that "if two constructions are possible
upon the language of the statute, the Court must choose the one
which is consistent with good sense and fairness and eschew
the other which makes its operation unduly oppressive, unjust
or unreasonable or which would lead to strange inconsistent
results or otherwise introduce an element of bewildering
uncertainty and practical inconvenience in the working of the
statute."
The learned counsel for the appellants has, however, argued
that even if a particular declaration of law had stood the test of
time it was still open to a party to contend that the law needed to
be reconsidered, as to ignore this aspect would be a
transgression of the law itself more particularly if the Court were
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to hold that though the law had been wrongly interpreted, it had
nevertheless to be maintained on the plea that it had been
followed since long. In this connection, the learned counsel has
placed reliance upon the judgment of this Court reported as
(2000) 4 SCC 285 Molar Mal (Dead) through LRs. V. Kay Iron
Works (P) Ltd.
We have considered this argument as well and we find
that it does not arise on the facts of the case and on the contrary
the matter appears to be settled by this Court, the Privy Council
and the Kerala High Court, as alluded to above We are of the
opinion that the interpretation given to Section 11(3) has not only
stood the test of time but is even otherwise a correct enunciation
of the law. In Molar Mal’s case (supra) this Court observed that:
"We will be failing in our duty if we do not
declare an erroneous interpretation of law by
the High Court to be so, solely on the ground
that it has stood the test of time. Since in our
opinion, in regard to the interpretation of the
above proviso, no two views are possible, we
are constrained to hold that the law declared
by the Punjab and Haryana High Court with
reference to the proviso is not the correct
interpretation and hold that the said judgment
is no more a good law."
It would be clear from the above quote that the Court had
held that as the decision of the High Court was erroneous and
unsustainable it was obligatory that it be set aright. The
judgment in question therefore does not advance the case of the
tenants.
It has finally been argued by the learned counsel for the
tenants that the second proviso to Section 11(3) of the Act
envisaged that no ejectment could be ordered if the tenant was
earning his livelihood from the business conducted from the
demised premise and that there was no other suitable place to
which he could shift his business. We find no merit in these
pleas as well. From a perusal of the judgment of the Full Bench
of the Kerala High Court reported in Francis vs. Sreedevi
Varassiar 2003 (2) KLT 230 we observe that the onus lies on the
tenant to prove that he was dependent on the income derived
from the business being carried on from the demised premises
and that there was no other suitable building to which he could
shift his business. We have perused the evidence on this aspect
and are of the opinion that this onus has not been discharged
and on the contrary the evidence shows that he was not using
the premises for his business as he was an autorickshaw driver
and, had, in addition, made absolutely no attempt to ascertain
the availability of another suitable building to which he could
shift his business as his statement in Court was that it was not
possible to relocate on account of the high rents without giving
any details of the enquiry etc. that he might have made in this
regard.
We are, accordingly, of the opinion that there is no merit in
this appeal. It is accordingly dismissed