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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