AMMINI PANDARATHY Vs. LEELAMMA

JUDGEMENT

(1.) Questions of some importance in the matter of eviction of a tenant for reconstruction of the building under S.11(4)(iv) of the Kerala Buildings (Lease and Rent Control) Act, 1965, for short the Act, arise for consideration in these Civil Revision Petitions. The questions are:

(2.) Learned counsel for the revision petitioners contends that under S.11(4)(iv) of the Act a tenant of a residential building cannot be evicted for reconstructing the same into a non residential building. According to the learned counsel, if that is possible, provisos 1 to 3 of S.11(4)(iv) will become meaningless. Learned counsel points out that the clear indication in the above provisos is that the evicted tenant should have the first option for the allotment of the reconstructed building and that the reconstruction should be completed within the time fixed for the same and the tenant should be put back in possession with the least possible delay. Learned counsel contends that the chances of reoccupation of the tenant cannot be defeated by the landlord by reconstructing the building into a non residential one. Learned counsel relies on B. Mohanbhai v. M S U Mandir ( AIR 1975 SC 2128 ) and contends that a landlord should not be allowed to circumvent the provisions of the Act by getting an order of eviction. In the above case, a landlord wanted the eviction of a tenant of a residential building on the ground that he wanted the same for certain non residential purposes. The Court said that allowing the eviction will, in effect, be allowing the landlord to circumvent the provisions of S.25 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 under which a landlord cannot convert the user of the premises from a residential to a non residential purpose. Learned counsel points out that in the case of an eviction under S.11(4)(iv) of the Act even though the tenant is dispossessed, his right to get back into possession is kept in tact and the landlord can let it out to another only if the tenant does not want to reoccupy the building. Learn d counsel then contends that the reconstruction of a residential building into a non residential one will be a conversion which is prohibited under S.17(1) of the Act. According to the learned counsel, under S.17(1) not only the tenant but the landlord is also prohibited from converting a residential building into a non residential one or vice versa. It is pointed out that the result of the orders of the courts below will be that a non residential building will come into existence in the place where there existed a residential building The next contention of the learned counsel is that as per S.11(4)(iv) of the Act the plan and licence for the reconstruction of the building must be there when the landlord files the petition for eviction and, in this case, since they were obtained by the landlord only at the time of evidence in the case the eviction petitions ought to have been dismissed on that ground alone. In this connection, reference is made to Hameed v. Ittoop ( 1970 KLT 501 ) a Full Bench decision of this Court under the third proviso to S.11(3) of the Act. Learned counsel then points out that the Revisional Authority went wrong in giving a direction to the landlord to submit a revised plan providing 10 rooms in the building to be reconstructed. According to the learned counsel, the directions that can be issued under the second proviso to S.11(4)(iv) of the Act have nothing to do with the plan of the building to be put up. Learned counsel points out that the proviso itself comes into play only after the eviction of the tenant under S.11(4)(iv) of the Act and when the landlord does not complete the reconstruction within the time fixed in the order of eviction or the extension of time given by the Rent Control Court thereafter,

(3.) Learned counsel fair the respondent landlords contends that under S.11(4)(iv) of the Act, if the court finds that the landlord bona fide requires to reconstruct the building it cannot be insisted that a residential building can be reconstructed only as a residential building and a non residential building can be reconstructed only as a non residential one According to the learned counsel, it is immaterial whether after reconstruction the building is suitable for occupation for the tenant who was evicted under S.11(4)(iv) of the Act. Learned counsel points out that what the third proviso to S.11(4)(iv) insists is that if the tenant wants the reconstructed building, he will have the first priority for allotment. Learned counsel refers to Kailiani v. Madhavi ( 1970 KLT 257 ) and contends that the social purpose of the provisions is to remove the roadblocks in the way of progress in building programmes, In the above decision it is further said that replacement and renewal of obsolescent and unsightly buildings to make room for larger, modern constructions is a social necessity, provided existing tenants are not thrown into the streets. Learned counsel also points out that in the above decision it is said: