Kunhamma
@ Lakshmi Ammas Children & Anr Vs. Akkali Purushothaman & Ors [2007] Insc 395 (12
April 2007)
B.P. Singh & Harjit Singh Bedi
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.
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
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
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 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.
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