PETITIONER:
P. KESAVAN(DEAD) THROUGH LRS.
Vs.
RESPONDENT:
AMMUKUTTY AMMA & ORS.
DATE OF JUDGMENT26/11/1987
BENCH:
MUKHARJI, SABYASACHI (J)
BENCH:
MUKHARJI, SABYASACHI (J)
RANGNATHAN, S.
CITATION:
1988 AIR 339 1988 SCR (2) 81
1988 SCC (1) 202 JT 1987 (4) 575
1987 SCALE (2)1311
ACT:
Kerala Buildings (Lease and Rent Control) Act, 1965:
ss. 11(3), 17 & 20-Eviction-Bona fide need of landlord-
Tenant using building for non-residential purpose-Landlord
whether entitled to seek eviction on grounds of residential
use.
HEADNOTE:
%
Sub-section (3) of s. 11 of the Kerala Buildings (Lease
and Rent Control) Act, 1965 permits eviction of a tenant
where the landlord bona fide needs the building for his own
occupation. The second proviso thereto excepts the tenant
depending for his livelihood mainly on business carried on
in such building. Sub-s. (1) of s. 17 interdicts conversion
of a residential building into a non-residential one or
vice-versa and division of such building into separate
portions except with the permission of the Accommodation
Controller. The proviso thereto makes the consent of the
landlord necessary where such conversion involves structural
alteration of the building.
The premises in question was being used by the tenant
for nonresidential purpose. The respondent-landlord required
it bona fide for his self-occupation. The Rent Controller
granted permission under s. 11(3) for eviction of the
tenant. The Appellate Authority and the District Judge in
revision did not interfere with the concurrent findings of
facts on the bonafide need of the landlord.
In second revision the contention that since the
requirements of the second proviso to s. 11(3) had not been
fulfilled, the landlord was not entitled to eviction was
rejected by the High Court on the ground that this was a
question of fact and ail the courts had found in favour of
the landlord.
In the appeal by special leave, it was contended for
the appellant that since the building in question was used
for non-residential purpose by the tenant and the landlord
required the same for a residential purpose, such a need
could not justify tenant's eviction by virtue of s. 17 of
the Act which prohibited such conversion.
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Dismissing the appeal,
^
HELD: l. The landlord is entitled to eviction. It is
found as a fact that he bona fide needed the premises in
question for his own use and occupation. Therefore, s. 11(3)
has been complied with. [84D-E]
The prescriptions of s. 17 are not attracted to the
instant case. The conversion as contemplated by s. 17(1) for
which permission was required is conversion by the tenant
and cannot be a conversion by the landlord. The use of
expression "such conversion" in the proviso to s. 17(t)
indicates that in case of conversion by the tenant
permission is required on the consent of the landlord.
Further-more, the term "convert" therein does not denote a
mere change in the mode of occupation but covers only
alterations of the physical features. Putting to a different
purpose the user of the building is not a conversion of the
building as such. The building was used for non-residential
purposes and the purpose for which it was sought was for
residential purpose. It has been found that the building has
rooms which can be used as bed rooms, sitting rooms etc. and
it has a kitchen and dining hall. No alteration or
conversion is required if the building is to be used for
residential purpose. There was, therefore, no conversion of
the building as such involved in the instant case, but a
change of user of the building. [86A; 85C-F, 86B]
Muhammed v. Abdul Rahiman, [1983] K.L.T. 874 and Das
Naik v. Narayanan, [1980] K.L.T. 951, approved.
[Since the appellants-tenants have been in possession
of the premises for sometime, it was directed that the
decree for eviction shall not be executed till 30.9.1988
provided they pay arrears of rent, if any, within one month,
and undertake to hand over vacant and peaceful possession,
to pay future compensation month by month before 10th of
every month and not to induct any other person.[86D-G]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2 of
1982.
From the Judgment and order dated 16. 10.1981 of the
Kerala High Court in C. R. P. No. 1927 of 1987.
N. Sudhakaran for the Appellants.
E.M.S. Anam for the Respondents.
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The Judgment of the Court was delivered by A
SABYASACHI MUKHARJI, J. This appeal by special leave is
directed against the order of the High Court of Kerala at
Ernakulam dated the 16th October 1981 in Civil Revision
Petition No. 1927 of 1981. The appellants are the heirs of
the original tenant. The original appellant died and his
heirs have been substituted in his place. The landlord being
the respondent herein wanted the premises in question for
his own use and occupation. He accordingly applied to the
Rent Controller for permission. The Rent Controller after
hearing the parties granted such permission The Appellate
Authority upholding the order of the Rent Controller,
maintained the order of eviction. There was a revision
before the learned District Judge. The learned District
Judge dismissed the revision petition holding that it was
difficult to interfere with the concurrent findings of facts
of the Courts below on the bona fide need of the landlord
for his own use and occupation.
The tenant came up before the High Court in second
revision and the High Court after hearing the parties and
considering the contentions urged before it, dismissed the
revision upholding the order of Rent Controller, the
Appellate Authority and the District Court under Section 20
of the Kerala Building (Lease and Rent Control) Act, 1965
that the landlord required the premises for his bona fide
need and for self occupation.
The only contention that was urged in the matter was
that the landlord was not entitled to eviction under sub-
section (3) of Section 11. Sub-section (3) of Section l l
provides as under:-
“A landlord may apply to the Rent Control Court
for an order directing the tenant to put in
possession of the building if he bona fide needs
the building for his own occupation or for the
occupation be any member of his family dependent
on him.”
The contention urged before the Courts below including
the High Court was that the second proviso to Sub-section
(3) of Section 11 had not been fulfilled and the second
proviso provides as under:-
“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
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income derived from any trade or business carried
on in A such building and there is no other
suitable building available in the locality for
such person to carry on such trade or business.”
All the Courts have found against the tenant’s
contention on this aspect of the matter. As this is a
question of fact, the High Court in our opinion has rightly
declined to interfere with that findings of fact.
Before we proceed further it was pointed out by the
counsel for the respondents that in view of the provisions
of the said Act and in view of the decision of this Court in
the case of Aundal Ammal v. Sadasivan Pillai, [1987] 1
S.C.C. 183 the second revision before the High Court in the
facts and circumstances of this case did not lie. For the
purpose of this appeal, we are not proceeding with on that
basis but have examined the facts found by the courts below
to find out if there is any infirmity in their findings as
mentioned hereinbefore.
It is found as a fact that the landlord bona fide
needed the premises in question for his own use and
occupation. Therefore, Section 11(3) has been complied with.
The only contention raised was whether on the second
proviso to Section 11(3) of the Act the landlord was not
entitled to eviction. That was rejected by the High Court on
the ground that this was a question of fact and all the
Courts have found in favour of the landlord. We agree with
this. Even if a second revision lay the scope of
interference by the High Court in the second revision is
very limited. This has been so held by this Court in M/s Sri
Raja Lakshmi Dyeing Works and others, v. Rangaswamy
Chettiar, A.I.R. 1980 S.C. 1253. We adhere to this
principle.
It was urged before us that the building in question
was used for non-residential purpose by the tenant and the
bona fide need of the landlord was said to be for the use
and occupation of the landlord and his family which is a
residential purpose. It was submitted that such a need
cannot justify in this case the eviction of the tenant. It
was also submitted that Section 17 of the Act prohibited
such conversion. Sub-section (1) of Section 17 which is
relevant for the present purpose provides as follows:-
“Section 17. Conversion of buildings and failure
by land-
85
lord to make necessary repairs:
(1) No residential buildings shall be converted
into a nonresidential building or vice-versa and
no such building shall be divided into separate
portions for letting on rent or for other purposes
except with the permission in writing of the
Accommodation Controller:
Provided that where such conversion involves
structural alteration of the building, the consent
of the landlord shall also be necessary.”
It appears clear that this conversion as contemplated
for which permission was required is conversion by the
tenant and cannot be a conversion by the landlord. Quite
apart from the fact that in this case there was no
conversion of the building sought. The building was used for
non-residential purpose and the purpose for which the
building was sought was for residential purpose. It appears
to us that putting to a different purpose the user of the
building is not a conversion of the building as such. It has
been found that the building as it is without any structural
change can be put to residential purpose. There was no
conversion of the building as such is involved in this case
but a change of user of the building. Furthermore, in any
event the proviso to Section ( I) makes it clear, in our
opinion, that such conversion as contemplated by Section 17
of the Act for which permission in writing by the
Accommodation Controller required is in case of change of
the user of the premises by the tenant and not by the
landlord. The use of the expression “such conversion” in the
proviso indicates that in case of conversion by the tenant
permission is required on the consent of the landlord.
Therefore the absence of permission in writing of the
Accommodation Controller in this case does in our opinion
affect the position. This appears to be the view of the
Kerala High Court on this aspect of the matter. See in this
connection Muhammed v. Abdul Rahiman, [1983] K.L.T. 874 and
Das Naik v. Narayanan, [1980] K.L.T. 951. This appears to be
the correct view of law. Our attention was also not drawn to
any decision of the Kerala High Court which has taken any
contrary view. The view held by the Kerala High Court in
this aspect has been relied by the High Court in the
judgment under appeal. It seems to be logical view. We would
therefore follow that view. In view of the proviso
explaining the ambit of that requirement that permission
sought for or mentioned in Section 17(1) is in respect of
the different user by the tenant and not by the landlord.
The High Court has also observed in term
86
“convert” does not denote a mere change in the mode of
occupation, but covers only alterations of the physical
features, the prescriptions of Section 17 are not attracted
to the present case at all. Admittedly the building in
question has rooms which can be used as bed rooms, sitting
room etc. and it has a kitchen and dining hall. No
alteration or conversion is required if the building is to
be used for residential purposes.
In the aforesaid view of the matter there was hardly
any scope for interference by the District Judge and he
declined to do so on this basis. In our opinion he was
right. Similar was the position of the High Court on these
facts and it declined to interfere with the findings of
fact.
In the aforesaid view there is no merit in this appeal.
The appeal fails and is dismissed accordingly. Parties will
pay and bear their own costs.
Since the tenants have been in possession of the
premises for some time we direct that the decree for
eviction shall not be executed till 30.9.1988 provided all
the heirs of deceased appellant file an usual undertaking in
this Court within four weeks from today stating inter alia.
as follows;
1. That the appellant will hand over vacant and
peaceful possession of the suit premises to the
respondent on or before 30.9.1988 from today.
2. That the appellants will pay to the respondent
arrears of rent, if any, within one month from today.
3. That the appellants will pay to the respondent
future compensation for use and occupation of the suit
premises month by month before 10th of every month.
4. That the appellants will not induct any other person
in the suit premises.
It is further directed that in default of compliance
with any one or more of these conditions or if the
undertaking is not filed as required within the stipulated
time, the decree shall become executable forthwith.
P.S.S. Appeal dismissed .
87