Kadungon Abdulkhader v. Kodiyil Naseema

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HON'BLE MR. JUSTICE B.KEMAL PASHA FRIDAY, THE 22ND DAY OF FEBRUARY 2013/3RD PHALGUNA 1934 RCRev..No. 392 of 2012 (A) ------------------------AGAINST THE ORDER/JUDGMENT IN RCA.219/2010 of D.C. & SESSIONS COURT,(RENT CONTROL APPELLATE AUTHORITY)THALASSERY AGAINST THE ORDER/JUDGMENT IN RCP.74/2008 of MUNSIFF COURT, (RENT CONTROLLER) THALIPARAMBA REVISION PETITIONER(S)/REVN.PETITIONER/APPELLANT IN RCA/RESPONDENT IN RCP: ------------------------------------------------------------------------------------------ KADUNGON ABDULKHADER AGED 52 YEARS S/O. PALLAKKAN MOIDEENKUTTY FRUITS & VEGETABLE BUSINESS, TALIPARAMBA MARKET TALIPARAMBA AMSOM DESOM, TALIPARAMBA TALUK P.O.TALIPARAMBA, PIN-670 141, KANNUR DISTRICT. BY ADV. SRI.R.SURENDRAN RESPONDENT(S)/RESPONDENT IN THE RCA/PETITIONER IN RCP: --------------------------------------------------------------------------------------------------- KODIYIL NASEEMA, AGED 48 YEARS D/O. MOIDEENKUTTY, NO OCCUPATION TALIPARAMBA AMSOM DESOM, TALIPARAMBA TALUK P.O.TALIPARAMBA, KANNUR DISTRICT-670 141. R1 BY ADV. SRI.P.NARAYANAN THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 29.1.2013 THE COURT ON 22-02-2013 PASSED THE FOLLOWING: ## **[CR]** # **THOTTATHIL B. RADHAKRISHNAN & B. KEMAL PASHA, JJ.** **----------------------------------------------R.C.R. No. 392 of 2012 ----------------------------------------------Dated this the 22[nd] day of February, 2013** ## **O R D E R** ## **Kemal Pasha, J.** In a case where the Rent Control Court is satisfied that the claim of the landlord under Section 11(3) of Act 2 of 1965 is bona fide, is it the requirement of law, in terms of that Statute, that the bona fides of the claim of the landlord has again to be considered in view of Section 11(10) of that Act? 2. The landlord, a lady, pleaded that her husband, who was about to return from the gulf, is dependent on her for occupation of the scheduled building, for him to conduct a RCR 392/12 -:2:- vegetable shop. The Rent Control Court allowed the R.C.P on the ground under Section 11(3) of the Act. The tenant who is the petitioner herein unsuccessfully challenged that order before the Rent Control Appellate Authority; which, after scanning the evidence and after hearing the parties, dismissed the appeal holding that the need urged by the landlady is _bona fide_ , and that the tenant is not entitled to the protection of the second proviso to Section 11(3) of the Act. 3. The main point which the learned counsel for the petitioner has tried to canvass before us was that a Division Bench of this Court in **Smitha v. Krishnan** reported in **2011 (4) KLT 697** doubted the correctness of the decision of the Division Bench of this Court in **Aboobacker v. Sahithya P.S. Sangham Ltd.** ( **2004 (2) KLT 947)** and referred the issue for consideration by the Full Bench under Section 4 of the Kerala High Court Act. The learned counsel for the petitioner has attempted to persuade us to keep our hands away from this matter till the Full Bench decides the said matter. We are aware that in **Smitha(** _supra_ **)** the Division Bench has held that RCR 392/12 -:3:- **Aboobacker(** _supra_ **)** shall continue to hold the field subject to the decision of the Full Bench. 4. Section 11(3) of the Act merely enables a landlord to apply 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 of any of the members of his family who is dependent on him for such an accommodation. On going through Section 11(3) of the Act it is clear that it is a provision that enables the landlord to put forward such a claim by filing an application before the Rent Control Court. At the same time, S.11(10) clearly casts an obligation on the part of the Rent Control Court to make an order directing the tenant to put the landlord in possession of the building, if it is satisfied that the claim of the landlord under Section 11(3) of the Act is _bona fide_ . 5. It is true that S.11(10) of the Act deals with subsections (3), (4), (7) and (8) of the Act. It is clearly stated that the Rent Control Court shall make an order directing the tenant to put the landlord in possession of the building, if it is satisfied RCR 392/12 -:4:- - that the claim of the landlord under sub sections (3), (4), (7) or - sub section (8) is _bona fide_ . Therefore, it is evident that the legislature has made it clear that satisfaction regarding the _bona fides_ should be confined to the claim of the landlord under sub-sections (3), (4), (7) and (8) of the Act. 6. A learned single Judge of this Court while dealing with S.11(4)(i) and S.11(10) in **Krishnan v. Vijayaraghavan (1977 KLT 1013)** held that if S.11(10) is to be applied to clauses (i),(ii), (iii) or (v) of S.11(4), then it will lead to very unhappy results. It was further held therein that what the legislature intended by enacting S.11(10) including the entire of S.11(4) can only be to include S.11(4)(iv) and not the other clauses of S.11(4). We are in full agreement with the said proposition. 7. A Division Bench of this Court in **Haridas v. Mercantile Employees' Association (1975 KLT 437)** held that the Rent Control Court is under a mandatory obligation as per Section 11(10), to investigate into the _bona fides_ of the claim put forward by the landlord under sub-section (7). RCR 392/12 -:5:- 8. A careful scrutiny and comparative analysis of the terms of Section 11(2) and the terms of sub-sections 3, 4, 7 and 8 of Section 11 of the Act would show that under Section 11(2), the landlord can seek eviction and if the requisites in terms of clause (b) of that section are established, the Rent Control Court shall make an order directing the tenant to put the landlord in possession, while the different provisions contained in subsections 3, 4(iv), 7 and 8 of Section 11 show that the landlord can apply for an order directing the tenant to put him in possession on grounds enjoined by those provisions. Subsections 3, 4(iv), 7 and 8 of Section 11 provide the grounds on which the landlord can claim for an order of eviction from the Rent Control Court directing the tenant to put the landlord in possession even without any act or omission from the part of the tenant. At the same time, the grounds under Sections 11(2) (b), 11(4)(i), 11(4)(ii), 11(4)(iii) and 11(4)(v) would emerge only on some act or omission from the part of the tenant; the ground under Section 11(2)(b) on the failure of the tenant to pay the rent; S.11(4) (i) when the tenant commits objectionable RCR 392/12 -:6:- sub-letting; S.11(4)(ii) when the tenant uses the building in such a manner as to destroy or reduce its value or utility materially or permanently; S.11(4)(iii) when the tenant has in his possession a building or subsequently acquires possession of or puts up a building reasonably sufficient for his requirement; and S.11(4)(v) on the failure of the tenant to occupy the building continuously for six months. So the above provisions constitute grounds due to some act or omission from the part of the tenant and not due to any desire from the part of the landlord. Even without any desire on the part of the landlord, he becomes entitled to apply for eviction or direction as aforesaid solely due to some act or omission from the part of the tenant. Whereas, the other provisions namely Ss.11(3), 11 (4) (iv), 11(7) and 11(8) deal with a claim from the part of the landlord even without any act or omission from the part of the tenant. That is why, the legislature has in its wisdom employed the term the claim of the landlord under Ss.11(3), 11(4), 11(7) and 11(8) in S.11(10). 9. As far as the grounds under clauses (i), (ii), (iii) and (v) of sub-section (4) of S.11 are RCR 392/12 -:7:- concerned, those circumstances deal with the entitlement of the landlord to get an order directing the tenant to put the landlord in possession when the ingredients of those provisions are satisfied. As far as those provisions are concerned, there cannot be any application of S.11(10). Similar is the case with the ground contained in S.11(2)(b) also. When the landlord needs _bona fide_ the building for his own occupation or for the occupation of any member of his family dependent on him, it does not create an entitlement, whereas, it merely entitles the landlord to forward a claim under Section 11(3) of the Act before the Rent Control Court. Similarly when the landlord requires the building _bona fide_ to reconstruct the same, the same also does not create an entitlement, whereas, it merely entitles the landlord to forward a claim under Section 11(4)(iv) of the Act before the Rent Control Court. In construing a particular section of a statute, the Court should always endeavour to construe the language of the statute in such a way as to avoid contradictions. A construction most agreeable to justice and reason should be adopted. In incorporating S.11 RCR 392/12 -:8:- (10) in the statute, the legislature has created two legal obligations on the part of the Rent Control Court, (1) when it is satisfied that the claim of the landlord under Sections 11(3), 11 (4), 11(7) and 11(8) is _bona fide_ , to make an order directing the tenant to put the landlord in possession of the building, and (2) to make an order rejecting the application if the Court is not so satisfied. S.11(10) makes it clear that it deals with the claims of the landlord under Sections 11(3), 11(4), 11(7) and 11(8). The claim of the landlord under Section 11(4) is confined only to S.11(4)(iv). When the need urged by the landlord under Sections 11(3) and 11(4)(iv) is _bona fide_ , it constitutes an opportunity for him to forward a claim under Sections 11(3) and 11(4)(iv) before the Rent Control Court. The ingredients of Ss.11(3) and 11(4)(iv) merely constitute grounds for raising a claim. When the Rent Control Court is satisfied that the said claim of the landlord is _bona fide_ , it shall make an order directing the tenant to put the landlord in possession of the building, and if it is not so satisfied, the Rent Control Court shall make an order rejecting the application containing the claim. RCR 392/12 -:9:- Any further significance need not be attributed to the term “ _bona fide”_ occurring in Ss. 11(3), 11(4)(iv) and S.11(10) of the Act. 10. After discussing the evidence in this case, the Rent Control Court as well as the Appellate Authority have clearly arrived at the conclusion that the landlady requires the building for the occupation of her husband to start the proposed business and that the intention to start such a business is a genuine desire. Both the courts below have concurrently concluded that the need urged by the landlady is _bona fide_ . Only when the Rent Control Court as well as the Appellate Authority became satisfied that the claim of the landlady under S.11(3) of the Act is _bona fide_ , the Rent Control Court made an order, apparently under Section 11(10) of the Act, which the Rent Control Appellate Authority has confirmed. The claim of the landlady under S.11(3) in this case is not hit by the first proviso to S.11 (3). It has also come out that the petitioner has failed to prove that he is entitled to the protection of the second proviso to S.11(3) of the Act. We do not find any illegality, irregularity or RCR 392/12 -:10:- impropriety in the impugned order, and the same is not liable to be interfered with. In the result, - (a) This Rent Control Revision is dismissed. (b) The tenant is granted four months' time from today to vacate the premises and deliver possession to the landlady on the following conditions: (i) He remits the entire arrears as on today before the executing court within three weeks from today and files an affidavit before the executing court within three weeks from today, unconditionally undertaking to surrender vacant possession of the premises to the landlady within four months from today. (ii) He pays charges towards use and occupation of the building at the current rent rate from today till he gives vacant possession of the premises to the landlady. (c) Execution proceedings, if any, pending before the executing court shall be kept in abeyance for a period of four months if the aforesaid conditions are satisfied. (d) If there is default in performing any of the conditions RCR 392/12 **==> picture [28 x 9] intentionally omitted <==** imposed in clause (b) above, the benefit given to the tenant as per this order will stand recalled automatically and the executing court shall effect delivery forthwith. Sd/- THOTTATHIL B. RADHAKRISHNAN, JUDGE Sd/- B. KEMAL PASHA, JUDGE. ul/- [True copy] _P.S. to Judge._ ul/-