KRISHNA MENON Vs. DISTRICT JUDGE

JUDGEMENT

(1.) The three authorities under the Kerala Buildings (Lease and Rent I Control) Act, 1965 (for short 'the Act')-Rent Control Court, Appellate I Authority and Revisional Authority have held in one accord that the need of I the landlord is bona fide and that the tenant is liable to be evicted from the building on the ground under S.11(3) of the Act. The landlord stated that he requires the landed space covered by the tenanted building to be used as a passage to the new multi-storeyed building constructed by him behind the tenanted premises. Such use can be made only by demolishing the tenanted building. The eviction order was passed by holding that the aforesaid need of the landlord is bona fide. This Original Petition is hence filed by the tenant under Art.227 of the Constitution of India challenging the said order of eviction passed against him. The contention urged during the time of argument is that the use of the landed space covered by the building, after demolishing the building, is not what is envisaged in S.11(3) of the Act. Counsel is aware that the decision of this Court is Sarada v. Kumaran ( 1969 KLT 133 ) is against the said contention. Hence learned counsel for the petitioners made a forceful plea for reconsideration of the ratio laid down in Sarada's case.

(2.) The principle laid down in the said decision is this: "Under S.11(3) a bona fide need of the landlord need not be of the identical building as the purpose of the occupation is immaterial. If occupation by a landlord in the re-constructed building after demolishing the existing building is sufficient ground within the meaning of S.11(3) the question would arise whether the need to provide a passage through the site on which the original structure stood after its demolition will attract S.11(3). The word 'occupation' does not necessarily refer to occupation as residence. An owner can occupy a place by making use of it in any manner. The fact that the pathway is intended for the customers of the landlord to go to the lodging house and a restaurant belonging to him does not mean that the landlord will not be in occupation of the same." Counsel contended that the Supreme Court decision relied on by the learned single Judge in Sarada's case pertains to the provisions contained in the Bombay Rents Hotel and Lodging House Rates Control Act, 1947 in which the word "premises" has been given a meaning which is much different from the definition of the word "building" in the Kerala Act. In support of the plea for a reconsideration of the ratio laid down in Sarada's case, learned counsel invited my attention to two other decisions, one by a Division Bench of the Patna High Court and other by a Division Bench of the Orissa High Court. (Vide Mahabir Prasad v. Bibhuti Mohan, AIR 1973 Patna 83 and Sadhana Ausadhalaya v. Moningi Nookumma, 1973 R.C.R. 622). It was pointed out that the Rent Control statutes dealt with in those two decisions contained provisions which are very similar to the words used in S.11(3) of the Kerala Act.

(3.) In the Patna decision, S.11(1)(c) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 was considered which reads like this: "Where the building is reasonably and in good faith required by the landlord for his own occupation or for the occupation of any person for whose benefit the building is held by the landlord". The Division Bench held that "it is manifest from the language of this clause that if the landlord does not require the building for his own occupation or for the occupation of any person for whose benefit the building is held by him, be cannot get the tenant evicted on the ground of personal necessity". In the Orissa decision cited above the scope of S.7(4) of the Orissa House Rent Control Act, 1967 was considered. The provision is not different from the relevant provision of the Bihar Act quoted above. The Division Bench of the Orissa High Court was not obviously inclined to consider the decision of this Court since a mention is made by the said Bench that the Kerala State Law on the subject is not pari materia with the Orissa Act. The Division Bench expressed doubt whether a landlord can legitimately bring an eviction proceeding for demolishing a building so as to use the vacant surface. No doubt, the above two decisions support the contention advanced by the learned counsel for the petitioners. On the other hand Sri. Krishna Prasad, learned counsel for the respondents contended that the principle laid down in Sarada's case is based on a pragmatic approach and that a departure therefrom would bring about undue hardship to the owners of the building in certain situations and hence the courts should hesitate to place such a construction on the provision. I shall now examine the position in the light of the rival contentions.