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PETITIONER: DAVIS

       Vs.

RESPONDENT: SEBASTIAN

DATE OF JUDGMENT:       19/08/1999

BENCH: V.N.Khare, Syed Shah Mohammed Quadri

JUDGMENT:

SYED SHAH MOHAMMED QUADRI, J

     This  appeal  is  from the judgment and order  of  the Division  Bench of the High Court of Kerala at Ernakulam  in C.R.P.   No.1778 of 1991-C dated July 28, 1994.  The polemic centres  round  interpretation of the  expression  ’personal use’  in  sub-section  (8)  of  Section  11  of  the  Kerala Buildings (Lease and Rent Control) Act, 1965 (for short ’the Kerala Act’).

     A  brief  narration of the facts giving rise  to  this appeal  is necessary to appreciate the question involved  in this  case.   The  question  of  bona  fide  requirement  of additional  accommodation  under  Section 11(8) of  the  Act alone  is canvassed before us so we are confining the  facts relevant  to that ground.  The appellant is the landlord and the  respondent  is  the tenant of a shop room  which  is  a portion  of  the  main building  of  Irinjalakkuda  Village, Mukundapuram  Taluk,  (hereinafter  referred   to  as   ’the premises’).   In the main building the appellant was running the business of hotel-cum-bar.  On the plea that he had made all preparations for starting a jewellery shop and a textile shop and bona fide requires additional accommodation for the proposed  business,  he  filed R.C.P.No.31 of  1983  seeking eviction of the respondent from the premises.  The ground of bona  fide  requirement  of  the  appellant  for  additional accommodation  was  opposed by the respondent.   He  averred that  he was running a provision shop in the premises  which was  his  sole source of income for his livelihood  and  the appellant was having other vacant accommodation which he let out  to  others.  The learned Rent Controller  recorded  the finding  that  the appellant was not in need  of  additional accommodation.  It was also found that if the respondent was evicted  from the premises he would be put to more  hardship than the benefit that would be fetched to the appellant.  In that  view of the matter, the Rent Controller dismissed  the eviction   petition  on  7th   June,  1986.   The   landlord unsuccessfully  assailed the said order before the Appellate Authority  in R.C.A.  No.39 of 1990.  Both, on the  question of bona fide requirement of the landlord and on the question of  comparative  hardship,  the   Appellate  Authority  held against  the  appellant/landlord.   Aggrieved  thereby,  the appellant  filed  C.R.P.  No.1778 of 1991-C before the  High Court  of  Kerala.   The Division Bench of  the  High  Court dismissed  the  Revision on 28th July 1994.  It  is  against that  order of the High Court, the appellant is in appeal by

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special leave.

     Mr.K.  Sukumaran, learned senior counsel appearing for the  appellant, invited our attention to sub-section (8)  of Section  11  of the Kerala Act and argued that it enabled  a landlord to claim additional accommodation for his bona fide personal  use and that the High Court committed grave  error of  law  in  confining the personal use of the  landlord  to expansion of the existing business only.

     Mr.   Ramesh  Babu, learned counsel appearing for  the respondent,  has contended that for purposes of starting any business  the  provisions of Section 11(3) will have  to  be invoked  and  that  Section  11(8)  applies  only  when  the landlord’s  need  for  additional accommodation  relates  to expansion  of  his existing business;  if Section  11(8)  is interpreted  as  contended by the appellant, then rigour  of Section 11(3) will be diluted and it will be circumvented by having recourse to sub-section (8).

     To  appreciate the contentions of the learned counsel, it  will  be  appropriate  to refer to  sub-section  (8)  of Section 11 of the Kerala Act which reads as under :

     "11(8).   A landlord who is occupying only a part of a building,  may apply to the Rent Control Court for an  order directing  any tenant occupying the whole or any portion  of the  remaining  part of the building to put the landlord  in possession  thereof, if he requires additional accommodation for his personal use."

     A  plain  reading of the provision,  extracted  above, shows  that the requirements of sub-section (8) under  which the  claim is made by the landlord are :  (i) a landlord  is occupying  only  a part of a building;  (ii) the  tenant  is occupying  the whole or any portion of the remaining part of the  building;   and (iii) the landlord requires  additional accommodation for his personal use.  We may notice here that sub-section   (10)  is  in  the   nature  of  a  proviso  to sub-sections (3), (4) and (8).  It mandates that if the Rent Controller is satisfied that the claim of the landlord under sub-sections  (3),  (4), (7) and (8) is bona fide, he  shall make  an  order thereunder but if he is not so satisfied  he shall  make  an order rejecting the application.  The  first proviso  to  sub-section (10) provides an additional  ground for  rejection of the application under sub-section (8) and, that  is,  if the Controller is satisfied that the  hardship which  may be caused to the tenant by ordering his eviction, will  outweigh the advantage to the landlord.  In the  event of  granting  the application the second proviso comes  into operation   and  empowers  the   Rent  Controller  to  grant reasonable  time  to the tenant for putting the landlord  in possession  of the building which may be extended from  time to  time up to three months.  While providing a ground to  a landlord  to claim additional accommodation for his personal use,  possible care has been taken to safeguard the interest of a tenant.

     There  is  no controversy in regard to  compliance  of requirements of (i) and (ii) of sub-section (8) noted above. In  hoc requirement (iii), the landlord has to show that  he bona fide requires additional accommodation for his personal use.   The  High  Court  held that the  requirement  of  the landlord  should  relate  to the same purpose,  namely,  for

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expansion of his existing business of hotel-cum-bar and that as  the  appellant intended to start a  different  business, namely,   the  jewellery  and   textile  business,  in   the additional  accommodation,  the  case  did  not  fall  under Section 11(8) of the Kerala Act.

     Now,  what is the meaning of the expression  ’personal use’ in sub- section (8)?  It is a well-settled principle of interpretation  that words in a statute shall be given their natural,  ordinary meaning;  nothing should be added to them nor should any word be treated as otiose.  Two comprehensive expressions  ’additional  accommodation’ and ’personal  use’ are employed in sub-section (8).  The expression ’additional accommodation’  takes  in both residential as well  as  non- residential buildings.  ’Personal use’ is also an expression of  wide  amplitude.   There is nothing in  the  sub-section which  restricts  the import of that expression.   The  said requirement  of sub-section (8) will be complied with on the satisfaction  of the Controller about bona fide need of  the additional  accommodation for personal use of the  landlord. To  what use the additional accommodation should be put,  is the   choice   of   the  landlord.   In  the   case   of   a non-residential  building  whether a new business should  be set  up in the additional accommodation or whether it should be  used  for  expansion of the existing business,  is  left entirely  to  the option of the landlord.  This,  being  the intendment  of the legislature, the Court cannot impose  any restriction  with  regard  to  the  use  of  the  additional accommodation  from  which  the eviction of  the  tenant  is sought.

     In  Joseph  vs.   Francis [1965 KLT 1113],  a  learned Single  Judge  of the Kerala High Court correctly  construed Section 11(8) of the Kerala Act when he held that it was the landlord’s  choice to decide what business he would carry on and  that  a Court would not be justified in saying that  he required  the building bona fide for his own use only if  he required it for expanding his existing trade.

     Thus,   it  follows  that   the   phrase   ’additional accommodation  for personal use of the landlord’ may  relate to  residential  purpose  as  well  as  for  non-residential purpose.   Where it relates to non-residential purpose there is  no  reason to restrict personal use of the landlord  for the  purpose of only expansion of the existing business.  He can  put  the additional accommodation, so long as  he  bona fide need it, to any business or purpose of his choice.

     Here,  it  may be useful to refer to in  pari  materia enactments  of  other States.  In Andhra  Pradesh  Buildings (Lease, Rent & Eviction) Control Act, 1960, Section 10(3)(c) deals  with  granting  order  of eviction  on  the  plea  of additional  accommodation.  It provides that in the case  of non-residential  building  the landlord has to show that  he requires  the additional accommodation for the purpose of  a business  which  he is carrying on;  thus under  Andhra  Act additional  accommodation can be sought for purposes of  the business  which the landlord is carrying on.  So also  under Section  10(3)(c) of the Tamil Nadu Buildings (Lease &  Rent Control)  Act  1960, the additional accommodation  for  non- residential  purposes  can  be claimed for purposes  of  the business which the landlord is carrying on.

     In  Shri  Balaganesan Metals vs.  Shri  M.N.Shanmugham Chetty  & Ors.  [1987 (1) RCR 586], while construing Section

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(10)(3)(c)  of  Tamil Nadu Act, this Court held that once  a landlord  has satisfied the Controller that he was bona fide in  need  of  additional accommodation  for  residential  or non-residential  purposes and that the advantage derived  by him  by  an  order of eviction will  outweigh  the  hardship caused  to  the tenant, then the landlord is entitled to  an order of eviction irrespective of any other consideration.

     It  may  be pointed out here in contra distinction  to the  other enactments that under Section 11(8) of the Kerala Act  claim  for additional accommodation is not confined  to expansion of the business which the landlord is carrying on. As  pointed  above,  the landlord has a wider  choice  under Section  11(8)  of the Act.  He can use it at his option  in case  of non-residential accommodation, either for expansion of existing business or for a new business.

     The  contention that if the expression ’personal  use’ under  sub-  section (8) is interpreted to include ’use  for any  business’, it will dilute the rigour of Section  11(3), which  is devoid of merit.  We shall notice sub-section  (3) of  Section 11 of the Act here to examine the contention  of the learned counsel :

     "Section  11(3).   A  landlord may apply to  the  Rent Control  Court for an order directing the tenant to put  the landlord in possession of the building if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him :

     Provided  that  the Rent Control Court shall not  give any  such direction if the landlord has another building  of his  own in his possession in the same city, town or village except  where  the Rent Control Court is satisfied that  for special  reasons, in any particular case it will be just and proper to do so:

     Provided further that the Rent Control Court shall not give  any  direction  to  a tenant to put  the  landlord  in possession,  if such tenant is depending for his  livelihood mainly  on  the  income derived from any trade  or  business carried  on in such building and there is no other  suitable building  available in the locality for such person to carry on such trade or business."

     (Provisos 3 and 4 are not relevant for our purposes).

     To  secure the eviction of a tenant under  sub-section (3),  a landlord has to show that :  (i) he bona fide  needs the building for his own occupation or for the occupation of any  member  of  his  family dependent  on  him;   (ii)  the building  of which eviction is sought, is in the  occupation of a tenant;  and (iii) he does not have another building of his  own in his possession in the same city town or  village or  if  he has such a building in his possession,  the  Rent Controller  will  have to be satisfied for  special  reasons that  it will be just and proper to order eviction of tenant from  the  building  in  occupation   of  the  tenant.   The legislative mandate to the Rent Controller is not to pass an order   directing  the  tenant  to   put  the  landlord   in possession,  if such tenant is depending for his  livelihood mainly  on  the  income derived from any trade  or  business carried  on  in  such  building and if  there  is  no  other suitable  building available in the locality for such person

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to  carry on such trade or business.  Thus, it is seen  that whereas  before passing an order under sub-section (8),  the requirement  of comparative hardship is to be considered  by the  Rent  Controller and it is only when the hardship  that may  be caused to the tenant by granting an order in  favour of  the landlord will outweigh the advantage to the landlord that the Rent Controller has to reject the application.  But under  sub-section  (3)  no order of  eviction  against  the tenant  can be passed if he is dependent for his  livelihood mainly  on  the  income derived from any trade  or  business carried  on in such building and there is no other  suitable building  available in the locality for such person to carry on  such  trade or business.  There is yet  another  feature which  distinguishes sub- section (3) from sub-section  (8). Whereas  possession  of another building in the  same  city, town or village except when the Rent Controller is satisfied for  special  reasons,  is  a bar for passing  an  order  of eviction  under  sub-section (3) but the basis  of  claiming such  an order under sub-section (8) is that the landlord is in  occupation  of a part of the building and he  needs  the remaining  part  of  the building or a  portion  thereof  in occupation of the tenant as additional accommodation for his personal  use.   Thus  it is seen that the  requirements  of sub-section (3) and sub-section (8) are different.  There is no  scope  for a case falling under sub-section (3) to  have recourse  to  sub-section (8) and thus diluting  sub-section (3).

     Now,  the germane aspect which remains to be  adverted to  is  the requirement of the first proviso to  sub-section (10)  of  Section  11, namely, comparative hardship  to  the tenant.   The  learned  Rent  Controller   as  well  as  the Appellate  Authority  held  against the  appellant  on  this aspect.   The High Court did not consider this aspect in the view  it had taken of Section 11(8) of the Act.  For all the above reasons, we are of the opinion that even after holding that  bona  fide requirement of the landlord for  additional accommodation  for  personal use is established, the  relief under  sub- section (8) of Section 11, cannot be granted  to him  without recording a finding under the first proviso  to sub-section  (10) of Section 11 of the Act in favour of  the landlord.   Since,  the  High Court did  not  consider  this aspect, we are of the opinion that the matter has to go back to  the  High Court for fresh consideration in the light  of this judgment.  The judgment and order of the Division Bench under  appeal  is,  therefore,  set aside and  the  case  is remitted  to the High Court for fresh disposal in accordance with  law.   The appeal is allowed as indicated  above.   No costs.