IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP No. 2012 of 2001(M)
1. A.M. PRABHAKARAN
... Petitioner
Vs
1. CHITHAPPA SULAIKABI
... Respondent
For Petitioner :SRI.S.V.BALAKRISHNA IYER (SR.)
For Respondent :SRI.A.P.CHANDRASEKHARAN (SR.)
The Hon'ble MR. Justice K.A.ABDUL GAFOOR
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :09/02/2007
O R D E R
K.A.ABDUL GAFOOR &
ANTONY DOMINIC, JJ.
-------------------------
C.R.P.No.2012 of 2001
-------------------------
Dated this the 9th day of February, 2007.
O R D E R
Abdul Gafoor, J.
This revision is by the tenant resisting orders of
eviction on the ground available under Section 11(3) of the
Kerala Buildings (Lease and Rent Control) Act [Act 2 of 1965]
{hereinafter referred to as ‘the Act’}.
2. The landlady required the building bona fide for
the occupation of her son. This was contested on the ground
that there was any such bona fide as the said son was
employed abroad. But, it has come out in evidence that the
son of the landlady had returned to his native place. In such
circumstances, the concurrent finding of bona fide cannot, any
more, be resisted on that basis. The further contention of the
tenant was that he was entitled to the protection of Section 11
(17) of the Act. The said Section did not permit eviction on
the ground of bona fides in case the tenant was occupying ‘as
C.R.P.NO.2012/01
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a tenant’ prior to 1.4.1940 onwards. There was dispute as to
whether the occupation continued prior to 1.4.1940. But,
there was doubt as to whether the protection available under
Section 11(17) would be applicable to the legal heirs of the
original tenant, who continued occupation from a date earlier
than 1.4.1940. This aspect was concluded by the Full Bench in
Narayanan v. Shalina {2003(2) K.L.T. 317}. But the Full
Bench, which considered this case, doubted the decision in
that case. Accordingly, it was referred to a larger bench
consisting of 5 Judges. It has been held by the larger bench
per majority that the benefit available under Section 11(17)
will not be available to the heirs of the original tenant, who
had been in occupation since a date earlier than 1.4.1940. In
such circumstances, even if the contention of the tenant that
the tenancy commenced earlier than the said date is accepted,
he cannot get the protection available under Section 11(17) of
the Act. Consequently, the revision has to be dismissed
confirming the findings of the authorities below. We do so.
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Anyhow, the tenant is granted three months’ time to
surrender vacant possession of the building, subject to
payment of arrears of rent, if any.
Sd/-
(K.A.ABDUL GAFOOR)
JUDGE
Sd/-
(ANTONY DOMINIC)
JUDGE
sk/
//true copy//
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR. V.K.BALI,
THE HONOURABLE MR.JUSTICE K.A. ABDUL GAFOOR,
THE HONOURABLE MR. JUSTICE KURIAN JOSEPH,
THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR,
&
THE HONOURABLE MR. JUSTICE K. PADMANABHAN NAIR.
C.R.P.No.2012 of 2001 – E
R.C.A. No.218 of 1998 of Rent Control Appellate Authority, (Dist. Judge,
Kozhikode.
R.C.P. No.53 of 1997 of Munsiff & Rent Controller, Kozhikode.
PETITIONERS in C.R.P./Appellants in R.C.A./Respondents in R.C.P.:
1. A.M. PRABHAKARAN, S/o.A.M. VELAYUDHAN, ADHIKARI THARAMMAL,
POST ARIYALLUR, MALAPPURAM DISTRICT.
2. A.V. SAVITHRI, D/o. -DO- in -DO- -DO-.
3. A.M. SAROJOINI, D/o. -DO- in -DO- -DO-.
4. A.M. BALACHANDRAN, S/o. -DO- in -DO- -DO-.
5. A.M. SREEDEVI, D/o. -DO- in -DO- -DO-.
6. A.M. SANTHA, D/o. -DO- in -DO- -DO-.
7. A.M. RADHA, D/o. -DO- in -DO- -DO-.
BY Advs. M/s. S.V. BALAKRISHNA IYER (Sr.) & P.B. KRISHNAN.
RESPONDENT in C.R.P./Respondent in R.C.A./Plaintiff in R.C.P.:
CHITHAPPA SULAIKABI, D/o.AHAMMED KUNHI AND W/o.PULIKKAL –
SHAMSUDDEEN, PUTHIYANGADI AMSOM DESOM, KOZHIKODE TALUK
AND DISTRICT.
BY Advs. M/s. A.P.CHANDRASEKHARAN (Sr.), PRABHA R. MENON,
PUSHPA RAJAN KODOTH, M. KRISHNA KUMAR &
T. SETHUMADHAVAN.
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON
11.01.2007, THE COURT ON 23.1.2007 PASSED THE FOLLOWING:
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V.K. Bali, C.J.,
K.A. Abdul Gafoor, Kurian Joseph,
K. Balakrishnan Nair & K. Padmanabhan Nair, JJ.
– – – – – – – – – – – – – – – – – – – – – – –
C.R.P.No. 2012 of 2001-E
– – – – – – – – – – – – – – – – – – – – — –
Dated, this 23rd day of January, 2007.
Order
V.K.Bali,C.J. (Concurring with K.Padmanabhan Nair, J.)
I have gone through the illuminative concurring judgments of
Abdul Gafoor and Balakrishnan Nair, JJ. as also the concurring
judgments of Kurian Joseph and Padmanabhan Nair, JJ. expressing
however, a different view than the one expressed by Abdul Gafoor and
Balakrishnan Nair, JJ. The present may be one of the rarest of rare cases
where every Honourable Member of the Bench has chosen to write,
even though concurring with the other, his own judgment. May be that
the Honourable Member of the Bench concurring with the other wished
to express the same view point in his own way.
2. I have given deep and anxious thought to both the views
and after considering and reconsidering the whole issue, I have come to
the conclusion that the view expressed by Kurian Joseph and
Padmanabhan Nair, JJ. appears to be correct. With respect, thus, I would
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differ with the view taken by Abdul Gafoor and Balakrishnan Nair, JJ.
Tenant means any person by whom or on whose account rent is payable
for a building and includes the heir or heirs of a deceased tenant as
would be made out from Section 2(6) of the Kerala Buildings (Lease and
Rent Control) Act, 1965. A tenancy is heritable, but the crucial question
in the present case is as to whether a privilege conferred upon a tenant
for his non-eviction even in a case where the landlord may require the
demised premises for his bona fide requirement is also heritable. In my
considered view, the plain language employed in Section 11(17) of the
Act would manifest that the privilege for non-eviction is of a tenant who
has been in continuous occupation of a building from 1st April, 1940 as
a tenant. Such a tenant is not liable to be evicted for bona fide
occupation of the landlord or of a member of the family dependent upon
the landlord. The tenancy may be heritable, but a special privilege
enjoyed by a tenant for his non-eviction is personal and such a personal
privilege is not and cannot be heritable. The heir of a tenant may
succeed to the right of his predecessor but he cannot succeed to the
personal privilege enjoyed by his predecessor conferred upon by virtue
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of he being in possession since 1st of April, 1940. The continuous
possession from 1st April 1940 alone clothes a tenant with a privilege
for non-eviction and such a continuous possession can be only peculiar
to a tenant actually occupying the premises and no occupation
conferring such a privilege like non-eviction can be heritable. In my
considered view, it is not a case which may require a debate with regard
to adding to or deleting from the existing provisions in the statute. The
statute confers a privilege to a tenant by the dint of his occupying the
premises from 1st April, 1940 and it is that tenant only who would have
the privilege of non-eviction. If, perhaps, this Court was to interpret
the provisions under debate or discussion, naturally, all principles of
interpretation as mentioned in the concurring judgments of Kurian
Joseph and Padmanabhan Nair, JJ. would apply. Surely, the right of a
tenant cannot nurture into ownership and if the heir of a tenant is to
inherit the privilege of non-eviction as well, it would be a virtual
conferment of ownership subject to payment of rent which may be
pittance, settled way back in 1940 or even before. This conclusion needs
to be arrived at by pure and simple interpretation of the statute in the
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context of objects and reasons of the Act of 1965 without in any manner,
whatsoever, adding to or deleting from the existing provision.
Sd/-
V.K.Bali, Chief Justice.
A
bdul Gafoor, J.(Dissenting with K.Padmanabhan Nair, J.)
3. ‘Eviction of tenants’ is the caption of Section
11 of the Kerala Buildings (Lease and Rent Control) Act [Act 2
of 1965] {hereinafter referred to as ‘the Act’}, which contains
several sub-sections, provisos and explanations.
4. The word ‘tenant’ appears in several of such sub-
sections, provisos and explanations. That expression is defined
in Section 2(6) of the Act as follows:
“tenant” means any person by whom or on whose account rent
is payable for a building and includes –
(i) the heir or heirs of a deceased tenant, and
(ii) a person continuing in possession after the termination of
the tenancy in his favour, but does not include a
kudikidappukaran as defined in the Kerala Land Reforms Act,
1963 (Kerala Act 1 of 1964), or a person to whom the collection
of rents or fees in a public market, cart stand or slaughter
house house or of rents for shops has been framed out or
leased by a Municipal Council, Municipal Corporation,
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Township Committee or Panchayat.”
5. Therefore, heir or heirs of a deceased-tenant also
come within the statutory definition of tenant.
6. The question coming up for consideration, on
reference by a Full Bench, is whether heirs of a deceased-
tenant are
“entitled to claim the benefit of immunity from eviction under
Section 11(17) of the Act as an inherited right in a Rent
control Petition filed in the year 1997?”
7. The building in question was let out, according to
the landlady, on 17.11.1950 and according to the tenants on
1.4.1936. The Full Bench, while referring the case, found
prima facie sustenance in the contention of the tenants that
the tenancy commenced on 1.4.1936. The tenant so put in
possession was one Velayudhan, the father of the revision
petitioners against whom the respondent/landlady filed a
petition for eviction alleging that they were liable to be evicted
on the ground of her bona fide need for own occupation.
8. The petition was mainly contested by the revision
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petitioners/tenants urging immunity from eviction available
under Section 11(17) to “a tenant, who has been in
continuous occupation of a building from 1.4.1940 as a
tenant.” The immunity provided for in the sub-section is
absolute in respect of tenancies other than for residence, but
qualified as regards the tenancy in respect of residential
building. The building in question is a non-residential building.
Therefore, if the revision petitioners are found to be in
continuous occupation of the building as tenants from
1.4.1940, necessarily, the benefit, protection, privilege or
immunity envisaged in sub-section (17) of Section 11 will be
available to them. Application of Section 11(17) has been
earlier dealt with by a Full Bench of this court in an earlier
case reported in Narayanan v. Shalina {2003(2) K.L.T.
317}.
9. While considering the contention of the revision
petitioners, a Division Bench noticed that several decisions of
the Supreme Court including that in Gian Devi v. Jeevan
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Kumar {AIR 1985 S.C.796} have not been placed before
that Full Bench, which held that the word ‘tenant’ appearing
in Section 11(17) of the Act should have been given a
restricted meaning, as the privilege or benefit available under
that provision was personal to the tenant who occupied the
building from 1.4.1940 onwards. Therefore, the matter was
placed before a Full Bench consisting of three Judges.
10. After elaborately discussing the ratio in Gian
Devi’s case, that Full Bench was of the view that “in the
absence of restrictive provision, the legal heirs of the
tenant have, at least after the commencement of the
Act, a heritable right of all rights and privileges of the
deceased tenant”. That Full Bench was also of the view that
if the ratio in Narayanan’s case were to be driven to its
logical conclusion, “then the privilege being personal to
the particular tenant, it will die with the person
regardless of the date of death of the said tenant
precluding his legal heirs from contending that they
C.R.P.NO.2012/01
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have inherited the estate to which the said privilege is
also attached”. The Bench also doubted whether “such a
consequence has been envisaged or intended by the
legislature”. According to the Bench, these are “some of
the nuances of the question for which no answer seems
to be provided by the interpretation placed on the
provision by the Full Bench”. Accordingly, that Full Bench
consisting of three Judges felt it to be considered by a larger
bench. Therefore, this reference.
11. Of course, the case of the tenants revolves on the
question whether they are entitled to the protection envisaged
in Section 11(17) of the Act. But even now it is not
conclusively found finally as to when the tenants commenced
continuous occupation to consider whether, they will come
within the umbrella of Section 11(17). There is also a debate
as to whether the findings in an earlier proceedings act as res
judicata against the tenants to urge the contention centered
around Section 11(17). If finding on any of these points is
C.R.P.NO.2012/01
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rendered against them, necessarily, the point referred does
not arise at all. It is afraid, whether the decision by this Bench
will become on a point not arising in the case. Therefore, this
exercise by a bench of five Judges ought to have been avoided
awaiting final finding on the said points by a bench of less
number of Judges or even by decision by the lower tribunal, if
remand is required, as opined by the referring Bench.
Anyhow, the Bench proceeded to answer the reference.
12. The claim of the revision petitioners for protection
of Section 11(17) is resisted contending that, the benefit
provided in that provision is only personal to the incumbent
who was in occupation of the building on 1.4.1940 and
continuously thereafter. If heir/heirs are brought in within its
purview, it will result in permanent tenancy in favour of them.
13. As pointed out at the threshold, Section 11 deals
with eviction of tenants and ‘tenant’ is defined in Section 2(6)
of the Act to include ‘heir or heirs of a deceased-tenant’.
The word ‘tenant’ is repeatedly used, apart from in the
C.R.P.NO.2012/01
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caption of the Section, in several of the sub-sections, provisos
and explanations forming part of Section 11 which runs into
pages. When a word used in a Statute is defined in the
interpretative Section, unless any other situation or context
arises, that word appearing in several parts of the statute has
to be ascribed the same meaning; and a different meaning
cannot be attributed to the same word specifically defined.
14. A tenant defending a petition for eviction on
various grounds urged in Section 11(2), in 11(3), in different
clauses of Section 11(4) etc., can be the heir or heirs of the
person, with whom the tenancy agreement was entered into.
The tenant, who is defending eviction proceedings contending
any of the protections or benefits envisaged in the provisos to
Section 11(3) can also be such heir. A person opting for space
in the building after eviction on the ground of reconstruction of
the tenanted premises in terms of the 2nd proviso to Section
11(4)(iv) can also be a heir of the person who has been
C.R.P.NO.2012/01
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evicted, if he is dead by that time. Similarly, if the landlord
does not occupy the premises from which a tenant has been
evicted on the ground of bona fide need within the prescribed
period, a heir of a deceased tenant, who has been thus
evicted, can also seek reoccupation in terms of Section 11
(12). The word ‘tenant’ employed in the provisions covering
these different situations is interpreted in the same way as
defined in section 2(6) to include the heirs and it does not
admit a different shade of meaning. In such circumstances, is
it justified to give a different meaning to the word ‘tenant’
employed in Sub-section (17) of Section 11? This is the
question debated.
15. The said provision reads as follows:
‘Notwithstanding anything contained in this section a tenant
who has been in continuous occupation of a building from 1st
April 1940 as a tenant shall not be liable to be evicted for bona
fide occupation of the landlord or of the occupation by any
member of his family dependent on him, provided that a
landlord of a residential building shall be entitled to evict such
a tenant of that building if the landlord has been living in a
place outside the city, town or village in which the building is
C.R.P.NO.2012/01
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situated for a period of not less than five years before he makes
an application to the Rent Control Court for being put in
possession of the building and requires the building, bona fide
for his own permanent residence or for the permanent
residence of any member of his family or the landlord is in dire
need of a place for residence and has none of his own.”
16. The word ‘tenant’ wherever used in this provision
is not denoted by a definite article. This provision contains a
protection, benefit or privilege for a ‘tenant’ in continuous
occupation of a building from 1.4.1940 onwards.
17. Sub-section (12) of Section 11 also envisages
another protection, benefit or privilege available to a tenant in
the following words:
“Where a landlord who has obtained possession of a
building in pursuance of an order sub-section (3), does not
occupy it without reasonable cause within one month of the
date of obtaining possession, of having so occupied it,
vacates it without reasonable cause within six months of
such date, the tenant who has been evicted may apply to the
Rent Control Court for an order directing that he shall be
restored to possession of the building, and the Court shall
make an order accordingly notwithstanding anything
contained in Section 4.”
C.R.P.NO.2012/01
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18. The word ‘tenant’ employed in this provision is
with a definite article. Even then, that privilege is available to
the heir or heirs of the evicted person as well. In other words,
if a tenant has been evicted by a landlord urging the ground
under sub-section (3) of Section 11 and if the landlord does
not occupy the building without reasonable cause within a
month from the date of obtaining possession of the building or
after occupying it vacates it within six months without
reasonable cause, the evicted tenant is enabled to seek an
order from the Rent Control Court to restore him to
possession. This benefit available to the evicted tenant, in
case of his death can be claimed by his heir or heirs as well,
going by the definition of the word tenant in Section 2(6) of
the Act. A Division Bench of this court also has taken that
view in the decision reported in George Peter v. T.K.Sali
{ILR 1999(1)Kerala 529}. In that case, a tenant who has
been ejected out on the ground of bona fide need of the
landlord, having found that the latter did not make use of the
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building for such bona fide need, invoked Section 11(12).
During the pendency of the petition so he filed, he died. His
heirs sought for impleadment. This was resisted by the
landlord on the ground that “after the death of the original
tenant, his legal heirs would not get a right to get
themselves impleaded in order to contest the
proceedings as the right given by the statute to an
evicted tenant is a right personal to him”. The Rent
Controller as well as the appellate authority did not accept
that objection raised by the landlord. The matter was carried
to this court, in revision under Section 20 of the Act.
Considering the point, the Division Bench held that:
“It has to be remembered that even if the statutory tenant has no
estate or property in the demised premises, once the Act has created
a right in such a tenant in respect of the property by widening the
definition of the expression ‘tenant’ so as to include the heirs of a
deceased tenant, the latter will be entitled to claim all the rights of
the original tenant.”
19. Section 11(13) deals with a situation where a
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tenant does not avail of the privilege or benefit in terms of
Sub-section (12). But that in no way restricts the meaning of
the word tenant employed in Section 11(12) to have a
different look on the dictum in George Peter’s case.
20. The Full Bench in Narayanan’s case while
holding that “the protection under S.11(17) …. must
certainly be reckoned as a personal privilege or
protection available to the tenant actually in continuous
occupation from the relevant date 1.4.1940 and not to
his successors” did not advert to the decision in George
Peter’s case (referred supra) nor to the position of a tenant
exercising a similar benefit or privilege available in Section 11
(12), as in sub-section (17), to ascribe the meaning of the
word ‘tenant’ appearing in both the provisions conferring
benefits/privileges on the tenant, in a uniform manner. The
meaning of the word ‘tenant’ appearing in sub-section (12)
and sub-section (17) has to be similarly construed. It is a
well-established rule of interpretation that while interpreting a
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particular provision of a statute, courts should bear in mind
the object and scheme of the entire Act. A particular provision
of the Act cannot be considered or interpreted in isolation so
as to give room for conflict inter se between the provisions of
the same Act.
21. At this juncture, one cannot be unmindful of the
provisions in Section 11(11)(i) where, the same word ‘tenant’
may have a different shade in its meaning. The said provision
reads:
“Notwithstanding anything contained in sub-sections (1)
to (10) no order for eviction or for putting the landlord in
possession shall be passed, —
(i) against any tenant who is engaged in any employment
or class of employment notified by the Government as an
essential service for the purpose of this sub-section,
unless the landlord is himself engaged in any
employment or class of employment which has been so
notified, and the landlord requires the building for his
own occupation; or
(ii) in respect of any building which has been let for use
as an educational institution, and is actually being used
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as such, provided that the institution has been recognised
by the Government or any authority empowered by them
in this behalf, so long as such recognition continues.”
22. This provision also contains certain limited benefit
or protection to a tenant in its 1st segment and in respect of
the use of the building let out in its second segment. The
word ‘tenant’ used in its 1st segment is qualified by the
expression “who is engaged in employment notified by
the Government as an essential service …”. Therefore,
the benefit or protection is only for the persons employed in a
particular manner. It rarely happens that heir/heirs also
become similarly employed to earn that protection. Therefore,
the context clearly spells out a different meaning in
consonance with the limited and specified benefit or protection
envisaged in that sub-section.
23. But when the word ‘tenant’ used in section 11
(17) is qualified with the expression ‘who has been in
continuous occupation’ that takes in the ‘tenant’, who
includes, going by the definition, ‘the heir or heirs of a
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deceased tenant’ also. This is with the same import as
contained in Section 11(12) dealt with in George Peter’s case
referred to supra. Because, it does not refer to quality or
employment of the tenant as in Section 11(11)(i).
24. The explanation to section 11(17) also is not
capable of giving any different connotation to the word
‘tenant’ employed in that sub section. The explanation reads:
“In computing the period of continuous occupation from 1st April,
1940, the period, if any, during which the landlord was residing
outside the city, town or village in which the building is situated
shall be excluded.”
25. It is possible that even during the currency of a
tenancy a tenant may not physically occupy a building for
some time. In such circumstances, that provision, even if he
was in occupation initially from 1.4.1940, may not cloth him
with the benefit, protection or privilege available in terms
thereof. Because he will not be in continuous occupation,
though a tenant continuously. So far as such a person is
concerned, that period when he was not in real occupation of
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the building, while the tenancy subsisted, will be excluded if
during that period the landlord was residing outside the city,
town or village, where the building is situated. This being the
purpose of the explanation, it does not in any way give a
different shade of meaning to the word ‘tenant’ employed in
Section 11(17) to that contained in the definition clause.
26. The Full Bench in Narayanan’s case was
considering a case relating to tenancy commenced in 1919. In
that case, the person with whom the premises were originally
entrusted expired in the year 1941. His heirs continued the
occupation after his death. Thereafter, they formed a
partnership in the year 1951, a different entity; and renewal
lease deed was also executed. Thus, the said case did have a
different fact frame. Whether the son of the said original
tenant did fall within the definition of ‘tenant’ as available at
the time of death of the original tenant is also doubtful.
Anyhow, the subsequent partnership cannot be termed as the
heir of the deceased tenant to attract Section 11(17).
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Whatever that be, adverting to the definition as presently
appearing in the statute, the import of Section 11(17) was
considered, and the Full Bench was of the view that this
provision, if understood in that manner “would virtually
amount to a perpetual clog on the right of the landlord
to claim eviction under section 11(3) from a tenant” and
that such a clog or fetter has to be understood fairly and
reasonably without offending the provisions of the Constitution
which mandate ‘freedom from inequality and
arbitrariness’. According to the Full Bench in Narayanan’s
case, from 1.4.1940 to the enforcement of the present Act,
there was a gap of 25 years. But the section did not envisage
such protection to any tenant with 25 years of continuous
occupation and it was an indication to suggest that “Section
11(17) confers only the personal privilege and
protection to the tenants who were in possession on
1.4.1940 and not to their legal heirs”. That Full Bench
was also of the view that extension of such benefit “would
C.R.P.NO.2012/01
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amount to fetter and clog in perpetuity against the
claim for eviction under Section 11(3)” and that “there is
nothing in the language of Section 11(17) or the
scheme of the Act which suggests that legislature
wanted to place such an unreasonable fetter on the
right of the landlords”. The Full Bench considered the view
taken in Sarojini & ors. v. Safia & another
{C.R.P.No.2107 & 2108/92} and that in Viswanathan v.
Abdul Hameed{2000(3) K.L.T. 712} and approved the
ratio in the former and disagreed with the latter holding that
extension of “the benefit of Section 11(17) to legal heirs
of the tenant cannot be accepted as laying down the
correct law”.
27. In Sarojini’s case (C.R.P.No.2107 &
2108/92), the court was of the firm view that:
“We are not persuaded to entertain the contention of the
revision petitioner based on Section 11(17) ….”
In spite of that, that point was adverted to referring to a
decision in O.P.No.1045/62, wherein it has been held that:
C.R.P.NO.2012/01
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“in cases where a tenant is not able to prove that he has
been in continuous occupation of building from 1st April,
1940, Sub-Section (17) of Section 11 would have no
application.”
28. This finding was not after examination whether a
heir will come within the word ‘tenant’, in extenso.
Moreover, the definition available at that time was not as wide
as that now in section 2(6) of the Act. After adverting to the
said finding, the Bench in Sarojini’s case simply compared
the present Section 11(17) and that in the 1959 Act as
identical and concluded that:
“We are of the view that the benefit of the protection under Sec.
11(17) is available only to the tenant who was inducted into
possession prior to the date and continued to be in possession
on the date of proceedings for eviction and his legal
representatives, who, came into the category of tenants by virtue
of the inclusive definition in Sec.2(6) of the Act cannot claim
the protection”,
again without examining the import of the definition of tenant
contained in section 2(6) and the context of the word used in
provisions similar and dissimilar to Section 11(17). At the
same time, Viswanathan’s case also did not consider
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application of Section 11(17) with reference to the meaning of
the word ‘tenant’. It was really a case where an implied
surrender was alleged as a reason to resist application of
Section 11(17). Therefore, these two cases do not throw
much light on the point.
29. In a later decision reported in Prasannan v.
Haris {ILR 2005(2) Kerala 373}, a division bench has
followed Narayanan’s case, to the effect that:
“protection under Section 11(17) can be claimed only by a tenant
who was in possession of the building on or before 1940 and it
cannot be claimed by his legal heir who succeeded the original
tenant after 1940 as it is a personal right. It was concurrently
found on the basis of evidence that even the original tenant was
not in possession of the building in 1940 and therefore, the tenant
is not entitled to the benefit of Section 11(17).
30. But the passage just preceding the said dictum
will reveal that such an issue did not arise at all in that case.
That passage reads:
“It has come out in evidence that in 1963 Bata Shoe Company
Limited was the tenant in the petition schedule building and the
original tenant came into possession only after 1963. Further, no
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documentary or admissible evidence was adduced by the tenant to
show that even the original tenant was in continuous occupation of
the building before 1940.”
31. There is also no useful discussion on the point in
that case. Moreover, the question posed in that case was:
“Whether a legatee under the Will is a ‘heir’.”
Legatee is not a heir and often a legatee excludes a heir from
inheritance fully or partially. A Will is required for a legatee to
succeed as he is not always a heir or to succeed to the extent
bequeathed. On any count, Prasannan’s case is of no help to
answer the issue.
32. Examination of the provisions in the statute which
preceded the present Act will disclose that provision similar to
section 11(17) was already on statute book even at that time.
Therefore, the view in Narayanan’s case that protection is
not given to the tenants who are in continuous occupation for
a period of 25 years or more after the Act came into force is
indicative to suggest a different meaning to Section 11(17),
cannot be stated to be a logical conclusion. The purpose of
C.R.P.NO.2012/01
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the provision is not to confer a benefit, privilege or protection
to tenants who complete a particular period of tenancy, but to
a class of tenants with reference to a definite date of
commencement of continuous occupation of the tenanted
premises. Such a classification with such reasonable nexus is
with the object of conferring a benefit, privilege or protection
to a definite class of tenants. Such a provision remaining on
statute book unquestionably for a very long period of decades
together cannot be termed to offend the ‘right to equality’.
33. There are other Acts like Delhi Rent Act which
created a complete clog against eviction from building let out
for commercial purpose. Section 11(17) is not a complete clog
on eviction. On other grounds and in cases of non-occupation
even on the ground under Section 11(3), eviction can be
sought for. Moreover, even if a clog, legislature is competent
enough to legislate that clog. There is no challenge against
that provision. So the limited clog under Section 11(17) is not
a reason to attribute a different meaning to the word ‘tenant’.
C.R.P.NO.2012/01
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34. When the legislature has defined the word
‘tenant’ and when no restrictive meaning, by indication or
from context, can be ascribed to that expression appearing in
sub-section (17) of Section 11, as is manifest in Section 11
(11)(i), there is no reason at all to ascribe a different meaning
to the word ‘tenant’, to that contained in the definition clause.
35. It is now trite that tenancy creates an interest;
and that right, though limited, is heritable.
36. As held in Damadilal v. Parashram, (1976) 4
SCC 855:
“Tenancy has its origin in contract. There is no dispute that
a contractual tenant has an estate or property in the subject-
matter of the tenancy, and heritability is an incident of the
tenancy.”
37. The Supreme Court in Gantusa H. Baddi v.
Meerabai G. Pai (2000) 4 SCC 586 ) considered the
question whether the tenancy for non-residential purpose can
be held to be heritable under the Karnataka Rent Control Act
and held that, both in the case of contractual tenancy and
statutory tenancy, the quality of the estate or interest is
C.R.P.NO.2012/01
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the same. In that case, the Apex court adverted to a
Constitution Bench decision in Gian Devi Anand v. Jeevan
Kumar (1985) SCC 589, wherein it has been held that,
“The mere fact that in the Act no provision has been
made with regard to the heirs of tenants in respect of
commercial tenancies on the death of the tenant after
termination of the tenancy, as has been done in the
case of heirs of the tenants of residential premises, does
not indicate that the legislature intended that the heirs
of the tenants of commercial premises will cease to
enjoy the protection afforded to the tenant under the
Act.”
In this respect, it is to be borne in mind that Kerala Act
expressly includes heir/heirs of deceased tenant within the
definition of tenant.
38. It has also been held in H.C.Pandey v. G.C.Paul
{AIR1989 SC 1470} that:
“It is now well-settled that on the death of the original
tenant, subject to any provision to the contrary either
negativing or limiting the succession, the tenancy rights
devolve on the heirs of the deceased tenant.”
But it may be noted that in Kerala Act, there is no provision
C.R.P.NO.2012/01
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“negativing or limiting the succession” but heirs are
expressly and without limitation put in the place of their
predecessor for the purpose of considering them as tenants.
The same is the tenor of the decision reported in Imdad Ali
v. Keshav Chand (2003) 4 SCC 635 that, a successor-in-
interest of a tenant holds his tenancy right subject to
rights and obligations of his predecessor. So, there is no
reason to deny the heirs the right their predecessor had,
especially in the light of the explicit definition of “tenant” in
Section 2(6) to include the heir or heirs of a deceased
tenant.
39. In George Peter’s {ILR 1999(1) Kerala 529}
case also, a division bench of this court held that:
“There is no provision in the Act negativing or limiting the
right of the heirs from stepping into the shoes of the
deceased tenant.”
Noting this, another division bench of this court in Prasannan,
C.K. v. T.P.Haris and others {2005(2) ILR 373} also took
the view that “statutory tenant has heritable interest in
C.R.P.NO.2012/01
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the premises”.
40. Thus it is trite that whatever be the right or
interest of a tenant, it is heritable.
41. For the purpose of Section 11(17), the tenancy
created with a person shall be on or before 1.4.1940, and he
shall continue to occupy the premises demised as a tenant.
On the other hand, mere continuance of tenancy is not
sufficient to avail of that benefit or protection. Such a tenant
in continuous occupation cannot be evicted on the ground of
bona fide need of the landlord, in respect of a non-residential
building as in this case. When that tenancy is heritable, the
heirs of the original tenant succeeding to the estate continue
to be the tenants by reason of the definition of the term
‘tenant’ in Section 2(6) that tenant includes – the heir or
heirs of a deceased tenant as well. The tenant continues
with the tenancy so continued. The benefit, protection or
privilege available under Sub-section (17) of Section 11 is to
the tenant in a tenancy arrangement which continues, subject
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to the condition of continued occupation from 1.4.1940. That
continued occupation is not the occupation of the person with
whom the contract of tenancy was entered into, but of the
‘tenant’ in the tenancy arrangement. By definition, the word
‘tenant’ includes the heir or heirs of the person to whom the
building was so entrusted on commencement of tenancy, in
case of his death. Because as pointed out in Damadilal v.
Parashram, (1976) 4 SCC 855:
“The Rent Control and Tenancy Acts create a special
world of their own. They speak of life after death. The
statutory tenancy arises phoenix-like out of the ashes of
the contractual tenancy.
The contractual tenant may die but the statutory tenant
may live long thereafter. The statutory tenant is an ex-
tenant and yet he is a tenant.”
42. Section 11(17) certainly confers a benefit,
protection or privilege to a ‘tenant’ who has been in
continuous occupation of a building from 1.4.1940. In the
case of death of the tenant to whom the building was originally
entrusted from 1.4.1940, leaving his heirs, necessarily, that
C.R.P.NO.2012/01
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continuous occupation is continued by the tenant through
those heirs, because the definition indicates that ‘tenant’
includes his ‘heir or heirs’ as well. As held in Imdad Ali
{2003(4) S.C.C. 635}, ‘by reason of death of the
original tenant a new tenancy is not created’.
43. The long title to the Act indicates that the Act is
to regulate the leasing of the building and to control the rent.
Noting this the Full Bench in Narayanan’s case has opined
that “it may not be proper to reckon the Act as one
conferring the benefits on the tenants alone.” The
reasons for enactment of the Act reveals that it is intended to,
apart from regulating letting of buildings, “the prevention of
unreasonable eviction of tenants from building” also.
Section 11(17) is such a provision with that end in view, of
preventing eviction of a tenant occupying the building right
from 1.4.1940 onwards, alleging bona fide need of the
landlord to occupy it for some purpose.
C.R.P.NO.2012/01
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44. As held in Imdad Ali v. Keshav Chand
(2003) 4 SCC 635,
“When the heirs of a tenant acquire benefit under the Act,
the same would be subject to such limitation and liability
which has been provided under the Act.”
But while including heirs also in the definition of tenant in the
Act, the legislature has not intended or indicated any limitation
or restriction. On the other hand, before the amendment of
the definition clause, the tenant included only the surviving
spouse or a son or a daughter of the deceased tenant who had
been living with him as a member of the family up to the date
of his death. But by reason of the amendment effected by Act
7/66 to be effective from 20.7.1966, the definition has been
expanded to include heir or heirs of the deceased tenant
irrespective whether they are living with the deceased tenant
or not. Thus, unlike in other similar legislations, the Kerala
Act has expanded further an unrestricted definition of ‘tenant’
to include all heirs. This is yet another indication of the
legislative intent.
C.R.P.NO.2012/01
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45. When the benefit or protection from eviction is
given to a tenant, who includes heir/heirs as well, necessarily
there is no reason to ascribe a restrictive meaning to the word
‘tenant’, which the legislature has not expressly indicated, or
which does not arise from context, to confine it only to the
person to whom the premises has been entrusted at the
commencement of the tenancy.
46. On the other hand, a perusal of similar
legislations prevalent in other States, will reveal that the
legislatures there had conferred only restrictive benefits or
privileges to the heirs of the deceased tenant.
47. Definition of ‘tenant’ in Delhi Rent Control Act,
1958 is as follows:
“2(l) “tenant” means any person by whom or on whose account or
behalf the rent of any premises is or, but for a special contract,
would be, pay, and includes:–
(i) a sub tenant; (ii) any person continuing in possession after the termination of his tenancy; and (iii) in the event of the death of the person continuing inpossession after the termination of his tenancy, subject to the
C.R.P.NO.2012/01
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order of succession and conditions specified, respectively, in
Explanation I and Explanation II to this clause, such of
the aforesaid person:–
(a) spouse (b) son or daughter, or, where there are both son and daughter, both of them, (c) parents, (d) daughter-in-law, being the widow of his pre-deceasedson, as had been ordinarily living in the premises with such
person as a member or members of his family up to the date of
his death, but does not include:–
(A) any person against whom an order or decree for eviction
has been made, except where such decree or order for eviction
is liable to be re-opened under the proviso to Section 3 of the
Delhi Rent Control (Amendment) Act, 1976, (18 of 1976).
(B) any person to whom a licence, as defined by Section 52
of the Indian Easements Act, 1881 (5 of 1882) has been
granted.
Explanation II — If the person, who acquires, by succession,
the right to continue in possession after the termination of the
tenancy, was not finally dependent on the deceased person on
the date of his death, such successor shall acquire such right
for a limited period of one year, and, on the expiry of that
period, or on his death, whichever is earlier, the right of such
successor to continue in possession after the termination of the
tenancy shall become extinguished.
Explanation III — For the removal of doubts, it is hereby
C.R.P.NO.2012/01
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declared that:–
(b) the right of every successor, referred to in Explanation
I, to continue in possession after the termination of the tenancy
shall be personal to him and shall not, on the death of such
su
ccessor, devolve on any of his heirs”. [Emphasis supplied}48. Karnataka Act provides that:
(n) “Tenant” means any person by whom or on whose
account or behalf the rent of any premises, is or but for a
special contract would be, payable, and includes:–
(i) a sub-tenant; (ii) any person continuing in possession after thetermination of his tenancy, but does not include any
person to whom a licence as defined in section 52 of the
Indian Easements Act, 1882 (Central Act 5 of 1882) has
been granted.
5. Inheritability of tenancy –
(1) In the event of death of a tenant, the right of
tenancy shall devolve for a period of five years from the
date of his death to his successors in the following order,
namely —
(a) spouse (b) son or daughter or where there are both son and daughter both of them; (c) parents; (d) daughter-in-law, being the widow of his predeceased son: C.R.P.NO.2012/01 :: 40 ::Provided that the successor has ordinarily been living or
carrying on business in the premises with the deceased
tenant as a member of his family up to the date of his
death and was dependent on the deceased tenant:”
[Emphasis supplied]
49. But, in the Kerala Act, no such restriction is
expressly made in the definition clause nor impliedly spelt out
from the context of using that expression in Section 11(17).
50. If the benefit, protection or privilege available in
Section 11(17) is confined to the person with whom the
tenancy arrangement started on 1.4.1940 or earlier alone, as
held in Narayanan’s case, its effect is to delegislate and
delete that provision from the statute book. Taking into
account, the probable age of the tenant on or before 1.4.1940
and the lapse of time thereafter, it is not likely that such a
person may be available or if at all available he will be an
octogenarian who will also have to surrender soon that
privilege to the time. The provision will then have no effect.
A legislative provision otherwise effective and having meaning
cannot be destroyed by judicial interpretation giving restricted
C.R.P.NO.2012/01
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meaning to any word in that provision which is expressly
indicated as to be interpreted.
51. Judicial pronouncements is not capable of having
the effect of legislations. It cannot equally delegislate. It can
only declare a provision ultra vires upon specific challenge
based on constitutionality. It is altogether different from an
interpretation resulting in delegislating a provision or deleting
a provision from statute book on judicial pronouncement. The
provision in Section 11(17) is in no way transgressing the
limits of legislative sphere. In the words of Lord Sankey L.C.,
quoting Issacs, J. “unless it becomes clear beyond
reasonable doubt that the legislation in question
transgresses the limits laid down by the organic law of
the Constitution it must be allowed to stand as the true
expression of the national will {See Shell Co. of
Australia v. Federal Commr. of Taxation {1931 AC
275}. As observed by Francis Bennion in his Statutory
Interpretation,
C.R.P.NO.2012/01
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“An Act must be construed so that its provisions are given
force and effect rather than being rendered nugatory.”
52. Therefore, rather than annihilating the provision
which expresses the will of the legislature, it must be allowed
to stand, giving the word ‘tenant’ the meaning that has been
ascribed to it by the legislature itself. Normally the legislature
is the best judge of what is good for the community, but the
court should not shirk its duty to determine the validity of the
law {Municipal Corpn. of the City of Ahmedabad v. Jan
Mohd. Usmanbhai {(1986) 3 SCC 20 – AIR 1986 SC
1205} and {Dalmia Cement (Bharat) Ltd. v. Union of
India (1996) 10 SCC 104}. It is to be remembered here,
that there is no challenge as to the validity of the provision
under examination.
53. “Legislature understands and correctly
appreciates the needs of its own people, its laws are directed
to problems made manifest by experience, and its
discriminations are based on adequate grounds. The
presumption of constitutionality is indeed so strong that in
C.R.P.NO.2012/01
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order to sustain it, the Court may take into consideration
matters of common knowledge, matters of common report,
the history of the times and may assume every state of facts
which can be conceived existing at the time of legislation”.
54. That is why similar provision contained in the
preceding statute is again continued in the present one.
Certainly then, it can only be with a purposive approach of
protecting the ‘tenant’ (as defined) in occupation of the
building continuously since 1.4.1940, with no room for any
contextual restriction as contained in Section 11(11)(i) as
discussed above, but in similar sense as in Section 11(12)
where another similar benefit or privilege is dealt with.
55. There is also no situation for reading down the
provision as legislature has clearly indicated the meaning of
the word tenant and as no other meaning arise from the
context of Section 11(17). As held in Minerva Mills Ltd. v.
Union of India {1980 (3) S.C.C. 625}:
“The device of reading down is not to be resorted in order to
save the susceptibilities of the lawmakers, nor indeed to
C.R.P.NO.2012/01
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imagine a law of one’s liking to have been passed. One must
at least take the Parliament at its word … If the Parliament
has manifested a clear intention to exercise an unlimited
power, it is impermissible to read down the amplitude of that
power so as to make it limited. The principle of reading
down cannot be invoked or applied in opposition to the clear
intention of the legislature.”
56. As held in Sanjaykumar v. Narinder Verma {2006
(6) S.C.C. 467}:
“There being no substantive challenge to the Rules, there
was no question of striking down the Rules, nor was there
any situation of reading down the Rules.”
57. Moreover, reading down is not permissible in such
a manner as would fly in the face of the express terms of the
statutory provisions {See Gautam v. Union of India {1993
(1) S.C.C. 78}.
58. In the grab of “reading down”, however, it is not
open to read words and expressions not found in the statute
and thus venture into a kind of judicial legislation, {see
Calcutta Gujarati Education Society v. Calcultta
Municipal Corporation {2003(10) S.C.C. 533}. But that
C.R.P.NO.2012/01
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was what has been , in effect, done in Narayanan’s case. As
further held by the Supreme Court in that case:
“The rule of reading down is to be used for the limited
purpose of making a particular provision workable and to
bring it in harmony with other provisions of the statute.”
Really, there is no unworkability for Section 11(17) and it is
not in any way disharmonious with similar provisions in the
Act, as already discussed.
59. Legislations like the Act have to be viewed with
greater latitude than laws touching civil rights such as freedom
of speech, religion etc. The legislature should be allowed some
play in the joints, because it has to deal with complex
problems which do not admit of solution through any
doctrinaire or strait-jacket formula and this is particularly true
in the case of legislation dealing with eviction and rent control
matters, where, having regard to the nature of the problems
required to be dealt with, greater play in the joints has to be
allowed to the legislature. “The court should feel more inclined
to give judicial deference to legislative judgment in such field
C.R.P.NO.2012/01
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than in other areas where fundamental human rights are
involved”.
60. The Court must therefore adjudge by the
generality of its provisions and not by inequities or by the
possibilities of abuse of any of its provisions. Because, if any
inequities or possibilities of abuse come to light, the legislature
can always step in and enact suitable amendatory legislation
It would be within the exclusive domain of the judiciary to
expound the law as it is and not to speculate what it should be
as it is the function of the legislature.
61. The meaning of a word or expression used in a
statute often is coloured by the context in which it occurs. It is
the duty of the Court to determine in what particular meaning
and particular shade of meaning the word or expression was
used by the law-makers. In discharging that duty the Court
will take into account the context in which it occurs, the object
to serve which it was used, its collocation, the general
congruity with the concept or object it was intended to
C.R.P.NO.2012/01
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articulate and a host of other considerations. Bearing this in
view, when one approaches the word ‘tenant’ used in Section
11(17) in comparison with the context in which that word is
used in different provisions including 11(11)(i) and 11(12)
with variations in its meaning as already discussed, it does not
admit a different shade of meaning to that expressly indicated
in the interpretative provision Section 2(6).
62. The primary function of the courts is to interpret
and apply the laws according to the will of those who made
them and not to transgress into the legislative domain of
policy-making. The job of a Judge is judging and not law-
making. In Lord Devlin’s words, “Judges are the keepers of
the law and the keepers of these boundaries cannot,
also, be among outriders”. A Judge must not alter the
material of which the Act is woven, but he can and should iron
out the creases. But ironing out shall not result in burning out
the fabric of the statute. And that is the effect of the
interpretation given in Narayanan’s case.
C.R.P.NO.2012/01
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63. The benefit conferred on a tenant in terms of
Section 11(17) when available to heirs of the person with
whom the contract of tenancy commenced, it will not
constitute a permanent tenancy. Eviction can be sought for
against such a tenant on any of the grounds other than that
under Section 11(3), unqualifiedly, proving existence of such
grounds. Even under Section 11(3) eviction of a tenant since
1.4.1940 is permissible, if it is shown that the tenant did not
occupy the premises continuously since then, subject to the
explanation to Section 11(17). So, the tenancy with a tenant
entitled to the benefit of Section 11(17) cannot be termed as a
permanent tenancy when that benefit is available to the
heir/heirs of a deceased tenant.
64. Even otherwise, no building tenant in a notified
area can be evicted at all unless any of the grounds
statutorily recognised as per the Act is available. And the
tenants in such cases will continue indefinitely until they
voluntarily surrender the premises. Can such tenancy be
C.R.P.NO.2012/01
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termed as permanent tenancy? Answer is in emphatic
negative. Same is the situation in case of application of
Section 11(17) to a ‘tenant’ who includes the heir/heirs of a
deceased tenant.
65. Even in spite of the protection ensured to a
tenant in Section 11(17), the landlord can even seek for
revision of rent by initiating appropriate proceedings.
Landlord also cannot have grievance that he may have to
continue the lease on the same rate of rent fixed years ago. A
tenant is always, thus, a tenant and there is no statutory
metamorphosis by reason of the said provision. This is yet
another facet which demonstrates that the provision does not
result in permanent tenancy or in virtual conferment of
ownership.
66. The scheme of Section 11 of the Act indicates
that right of the landlord to get eviction on different grounds is
always restricted. On deposit of arrears of rent, an order of
eviction can be vacated. When sub tenant is sent away, on
C.R.P.NO.2012/01
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receipt of notice from landlord, such ground for eviction
vanishes. After reconstruction, space in the new building can
be opted to by the evicted tenant. For eviction on several
grounds as under sub-section (3), (4), (7) and (8) of Section
11, as specified in Section 11(10), the claim of the landlord
shall be bona fide. Even a landlord cannot urge the ground of
bona fide need under Section 11(3) merely as a ruse for
eviction. On eviction, he has to demonstrate his bona fide
need by occupying the premises for that need within a month
of getting delivery of the building from which the tenant was
evicted. A mere occupation is not sufficient. It should be for
at least a period of six months; unless some sufficient reason
is shown. Otherwise, the evicted tenant can seek re-
possession. The provisos to Sub-section (3) are further
fetters to seek eviction on the ground of bona fide need.
These are also several of the restrictions on the right to get
eviction even under Section 11(3). Thus, the restriction on
the right of the landlord to get the tenant evicted is pervading
C.R.P.NO.2012/01
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all over Section 11. Sub-Section (17) is manifestation of yet
another restriction on eviction of a particular class of tenants.
67. The constitution bench of the Supreme Court in
Gian Devi v. Jeevan Kumar {AIR 1985 S.C. 796}
considered a similar aspect. The point considered there was
as follows:
“The correctness of this view that on death of a tenant
whose tenancy in respect of any commercial premises has
been terminated during his lifetime, whether before the
commencement of any eviction proceeding against him or
during the pendency of any eviction proceeding against
him, the heirs of the deceased tenant do not enjoy the
protection afforded by the Act to the tenant and they do not
have any right to continue to remain in possession because
they do not inherit the tenancy rights of the deceased
tenant, is challenged in this appeal.”
It was held that the interest or estate which a tenant has
under the Act, despite the termination of contractual tenancy
creates a heritable interest. The Supreme Court made it clear
that:
“The termination of the contractual tenancy in view of the
definition of tenant in the act does not bring about any
change in the status and legal position of the tenant, unless
C.R.P.NO.2012/01
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there are contrary provisions in the Act; and, the tenant
notwithstanding the termination of tenancy does enjoy an
estate or interest in the tenanted premises. This interest or
estate which the tenant under the act despite termination of
the contractual tenancy continues to enjoy creates a
heritable interest in the absence of any provision to the
contrary.”
Noting the definition of ‘tenant’ in the Act considered by the
Supreme Court that tenant includes any person continuing in
possession, it was further held that in the absence of provision
to that effect:
“the heritable interest of the heirs of the statutory tenant
would devolve on all the heirs of the ‘so called statutory
tenant’ on his death and the heirs of such tenant would in law
step into his position.”,
and that the heirs of tenants become entitled:
“to inherit the status and position of the statutory tenant on
his death”.
The Supreme Court further held that:
“The heirs of the deceased tenant in the absence of any
provision in the Rent Act to the contrary will step into the
position of the deceased tenant and all the rights and
obligations of the deceased tenant including the protection
afforded to the deceased tenant under the Act will devolve on
C.R.P.NO.2012/01
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the heirs of the deceased tenant.”
There is specific and express inclusion of heirs in Kerala Act
and there is no contra indication in Section 11(17) to hold
otherwise.
68. In the light of this, to borrow the words of
Supreme Court in Damadilal v. Parashram {AIR 1976 SC
2229}:
“We find it difficult to appreciate how in this country we can
proceed on the basis that a tenant whose contractual tenancy
has determined but who is protected against eviction by the
statute, has no right of property but only a personal right to
remain in occupation.”
69. Above all, the benefit or protection available
under Section 11(17) is for a tenant who has been in
continuous occupation of a building from 1st April, 1940
as a tenant. Let the provision be read in full once again:
‘Notwithstanding anything contained in this section a tenant who
has been in continuous occupation of a building from 1st April 1940
‘as
a tenant’ shall not be liable to be evicted for bona fideoccupation of the landlord or of the occupation by any member of
his family dependent on him, provided that a landlord of a
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residential building shall be entitled to evict such a tenant of that
building if the landlord has been living in a place outside the city,
town or village in which the building is situated for a period of not
less than five years before he makes an application to the Rent
Control Court for being put in possession of the building and
requires the building, bona fide for his own permanent residence or
for the permanent residence of any member of his family or the
landlord is in dire need of a place for residence and has none of his
own.” {emphasis supplied}
Even if the words emphasised are omitted from the provision,
it will have the meaning that “a tenant in continuous
occupation from 1.4.1940 shall not be liable to be evicted’.
Then, what is the purpose of the words ‘as a tenant’
specifically used in the section in the sense that a tenant in
occupation as a tenant. Necessarily, it should add to the
meaning and sense otherwise obtained. It is more than a
tenant in occupation. That repeated usage of word ‘tenant’
that: a tenant who has been in continuous occupation of
a
building from 1st
April
1940 ‘
as
a tenant’,
in that provision,indicates that the continued occupant shall also be ‘as a
tenant’, as meant by the definition clause. That is the only
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import that can be gathered by the usage of the phrase ‘as a
tenant’. The provision cannot have the same meaning with
and without that phrase. Therefore, the phrase ‘as a tenant’
appearing has to be taken as emphasis for the status of the
occupant viz., as a tenant as defined. There, the legislature
did not use any further qualification to indicate that it is the
person who was originally inducted.
70. Therefore, on any look, – whether based on the
definition of the term ‘tenant’, based on inheritance, based on
legislative intention gatherable even from the preceding
statute, based on comparison of the term used in similar
provisions conferring benefits to tenants, based on creation of
special interest in favour of a class of tenants with continued
occupation from a particular date, based on the trend of the
statute imposing different types of restrictions on the right of
eviction available to the landlord, based on the generality of
the provision of the Act, based on the purpose behind usage of
the words ‘as a tenant’ in the provision under examination
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etc., the word ‘tenant’ appearing in Section 11(17), shall
necessarily be ascribed the same meaning as contained in the
definition in Section 2(6). Consequently, the heir or heirs of
a deceased tenant also will come within the protective
umbrella of Section 11(17) on proof of continued occupation
from 1.4.1940 of their predecessor followed by that of their.
71. The point referred is answered accordingly.
Sd/-
(K.A. ABDUL GAFOOR)
JUDGE
Kurian Joseph, J.(Concurring with K.Padmanabhan Nair, J.)
72. Whether the expression ‘tenant’ as appearing
under Section 11(17) of the Kerala Buildings (Lease and Rent
Control) Act, 1965 (hereinafter referred to as ‘the Act’)requires
attribution of a contextual meaning different from the normal
meaning as defined in Section 2(6) of the Act is the crucial
issue. The Full Bench decision of this Court in Narayanan v.
Shalima (2003(2) KLT 317) held that the protection conferred
on a tenant under Section 11(17) of the Act against eviction on
the ground of bona fide need of the landlord, is a personal
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privilege which lapses with the death of the original tenant.
The said decision has been doubted by a Division Bench and
hence this reference. I had the benefit of going through the
illuminative judgment of my learned brother Padmanabhan
Nair(J). I fully agree with the view of my learned brother that
the Full Bench decision in Narayanan’s case does not require
reconsideration. However, I feel that a little more flavour
could be added so as to sharpen the analysis.
73. At the outset, it is to be borne in mind that the
Act provides for, permits and requires the definitions to be
given contextual meaning. The sub-section 2(6) dealing with
‘tenant’ is not to be truncated and read. It should be read
from the opening words. The provision to the extent relevant
reads as follows :-
2.Definitions:–In this Act, unless the context otherwise
requires,–
-x x x x x x x x x x x x-
-x x x x x x x x x xx x x-
[(6) “tenant” means any person by whom or on whose
account rent is payable for a building and includes:–
(i) the heir or heirs of a deceased tenant, and
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(ii) a person continuing in possession after the termination of
the tenancy in his favour, but does not include a
Kudikidappukaran as defined in the Kerala Land Reforms Act,
1963 (Kerala Act 1 f 1964), or a person placed in occupation
of a building by its tenant, or a person to whom the collection
of rents or fees in a public market, cart-stand or slaughter
house or of rents for shops has been farmed out or leased by
a Municipal Council, Municipal Corporation, Township
Committee or Panchayat;]
Section 11 dealing with eviction of tenants has prescribed the
various safeguards against unreasonable eviction. Section 11
(3), subject to the conditions therein permits eviction for the
bona fide need of the landlord. It reads as follows :-
11.Eviction of tenants:–
-x x x x x x x x x x-
-x x x x x x x x x x-
(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
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such trade or business:
Provided further that no landlord whose right to
recover possession arises under an instrument of transfer
inter vivos shall be entitled to apply to be put in possession
until the expiry of one year from the date of the instrument:
Provided further that if a landlord after obtaining an
order to be put in possession transfers his rights in respect
of the building to another person, the transferee shall not be
entitled to be put in possession unless he proves that he
bona fide needs the building for his own occupation or for
the occupation by any member of his family dependent on
him.
However, Section 11(17) further provides that a tenant, who
has been in continuous occupation of a non-residential
premises from 1.4.1940 cannot be evicted for the bona fide
need of the landlord. The provision reads as follows :-
11.(17) Notwithstanding anything contained in this section
a tenant who has been in continuous occupation of a
bu
ilding from 1st
Ap
ril 1940 as a tenant, shall not be liableto be evicted for bona fide occupation of the landlord or of
the occupation by any member of his family dependent on
him, provided that a landlord of a residential building shall
be entitled to evict such a tenant of that building if the
landlord has been living in a place outside the city, town or
village in which the building is situated for a period of not
less than five years before he makes an application to the
Rent Control Court for being put in possession of the
building, and requires the building bona fide for his own
permanent residence or for the permanent residence of any
member of his family or the landlord is in dire need of a
place for residence and has none of his own.
Whether the tenancy referred to above in Section 11(17) would
continue eternally through his heirs is the question.
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74. The Rent Control Act no doubt is a social
welfare legislation intended to protect and safeguard the
interests of the tenants. It is “an Act to regulate the lease of
buildings and to control the rent of the buildings in the State of
Kerala.” As held by the Supreme Court in Ouseph Mathai v.
M.Abdul Khadir (AIR 2002 SC 110), the Act does not confer
unfettered powers on the tenants to remain in possession of
the leased premises for ever. In the statement of objects and
reasons, the purpose of the Act as originally introduced in
1959 are; (1) regulation of the letting of buildings, (2)
prevention of unreasonable eviction of tenants from buildings
and (3) the control of rent in respect of the leased premises.
While analysing the contextual meaning of a provision, the
legislative intent is certainly a crucially relevant factor. The
Act is not intended to make the tenant lord of the land, as was
done in the case of the revolutionary legislation-the Kerala
Land Reforms Act, or deprive ownership as in the case of
Kerala Private Forests (Vesting and Assignment) Act. It is not
intended to give any fixity of tenure. It is intended only to
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prevent unreasonable eviction of the tenants. The Act is also
not intended to give the tenant any vested right not to be ever
evicted and to continue eternally in occupation. The intention
is only to place some restrictions on the unfettered right of the
landlord under the common law to evict his tenants at will.
The Act does not contemplate any immunity to the tenants
from eviction.
75. Section 11(3) of the Act permits the landlord to
initiate proceedings for eviction on the ground of bona fide
need, subject to the enumerated further restrictions as per the
provisos under the sub-section. However, Section 11(17),
despite the provisos, imposes a fetter for ever on eviction for
bona fide use. In the instant case, we are concerned with the
lease of a non-residential premises. Literally, Section 11(17)
would mean that a tenant in continuous occupation of the
premises from 1.4.1940 as a tenant, cannot be evicted for
bona fide occupation of the landlord or of the occupation of
any member of the family dependent on him. Since Section 11
(3) provides for eviction on the ground of bona fide need, the
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fetter as introduced in Section 11(17) is thus an exception to
Section 11(3). The simple question is whether such exception
to Section 11(3) as provided under Section 11(17) giving
immunity from eviction is available to the heirs of a tenant who
is in continuous occupation of the building from 1.4.1940. If
the plain meaning of Section 2(6) is followed, the tenant has to
mean the heirs also. But it has to be noted that Section 2 itself
starts with the guarded provision-“unless the context
otherwise requires”. Whether the context of Section 11(17)
requires interpretation of the expression tenant to be restricted
as a personal privilege on the particular tenant in continuous
occupation from 1.4.1940 is the question.
76. Once a tenant, always a tenant and for ever, is
not the concept sought to be introduced under the Act. The
Act is intended only to prevent the mischief of unreasonable
eviction meaning thereby that a tenant is liable to be evicted
only in accordance with the provisions and procedure under
the Act. If the literal meaning of the word ‘tenant’ as defined
under Section 2(6) of the Act is taken, there is no question of
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any eviction of a tenant in occupation of non-residential
premises as a tenant continuously from 1.4.1940 for the bona
fide need of the landlord since there is no limit as such, on the
succession of heirs of the tenant. An Act intended to give
protection to a tenant from unreasonable eviction cannot
comprehend imposition of an unreasonable fetter for ever on a
landlord from even thinking of eviction on the ground of bona
fide need. That will be repugnant to the purpose of the Act.
Restriction on the right to evict and not extinction of the right
to evict is the purpose. Perpetuity of tenancy is not the
intention of the legislature while enacting a law on regulation
of the lease and prevention of unreasonable eviction.
Regulation of the lease and not regularisation is the intention
of the legislature. Protection from unreasonable eviction is the
purpose and not eternal protection of the lease. The court has
always a duty to strike a balance in such conflicting situations
by attributing a just and fair meaning to the context. It is
thus the duty of the court to find out the contextual meaning
of the expression ‘tenant’ as appearing under Section 11(17)
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of the Act. Since Section 11(17) is an exception to Section 11
(3) dealing with eviction on the ground of bona fide need of
the landlord, deprivation of that right of the landlord has only
to be limited to the particular person in continuous occupation
of the tenanted non-residential premises as a tenant from
1..4..1940. It is a personal privilege granted to the particular
tenant which cannot be inherited by the heirs. It is not
intended to provide an immunity to the heirs of the tenant in
eternity from eviction, extinguishing the legitimate hopes of
the landlord to have the premises for his bona fide need.
77. My wisdom, on the reasoning referred to above,
is mainly gathered from the literature on Principles of
Statutory Interpretation by Justice G.P.Singh (Eighth Edition)
and also a few celebrated decisions. According to the learned
author, “Reference to the Statement of Objects and Reasons is
permissible for understanding the background, antecedent
state of affairs, the surrounding circumstances in relation to
the statute, and the evil which the statute sought to remedy”.
As already stated above, when the common law permitted the
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landlords to evict the tenants at their sweet will, the legislature
thought of granting protection only from the unreasonable
eviction, and not perpetuity of tenancy. Even without
reference to the statement of objects and reasons also, courts
may have to make such an attempt to gather the contextual
meaning. To refer to one of the earliest decisions on this
point, of the Privy Council and to quote Sir George Rankin (ILM
Cadija Umma v. S.Don Manis Appu, AIR 1939 PC 63 p.65),
“A phrase having been introduced and then defined
the definition prima facie must entirely determine
the application of the phrase; but the definition
must itself be interpreted before it is applied, and
interpreted, in case of doubt in a sense appropriate
to the phrase defined and to the general purpose of
the enactment”.
In a given situation where the definition of an expression itself
is creating difficulty in giving effect to the purpose of
legislation, the expression will have to be interpreted having
regard to the purpose of the Act. In other words, a definition is
not to be read in isolation. In the instant case, however, the
definition clause itself provides that the expression should be
understood and applied having regard to the context in which
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the expression ‘tenant’ appears. Under Section 11(17), the
context relevant to the case is that of a tenant in continuous
occupation of the non-residential premises from 1.4.1940
facing the threat of eviction on the ground of the most
valuable right of the landlord, viz., bona fide own need. To
such a valuable right only, a temporary check by way of
exemption is given, a life interest, taking note of the
occupation of a particular person as a tenant for a long time
and a specified date is given as 1.4.1940. Despite my
strenuous effort as to the relevance of that date, I confess, I
was not able to gather any significance of that date, even from
the debates in the Assembly. Be that as it may, it would only
mean a long, un-interrupted occupation of a non-residential
premises by a person as a tenant. Though ordinarily a tenant
is liable to be evicted for the bona fide need of the landlord, in
the case of the particular person in continuous occupation of a
premises as a tenant from 1.4.1940, an exception is provided,
protection from eviction till the end of his life. That is only a
personal privilege to the person and not to his heirs, lest it
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should lead to perpetuity of tenancy, which would be
repugnant to the purpose of the legislation.
78. The contention of the revision petitioner is that
the court should not usurp on the legislative function under the
guise of interpretation. The Judges are not expected to
interpret statutes in the light of their views on policy matters.
What is expedient, what is just and what is morally justifiable
etc. are for the legislature to decide. I have no quarrel with
the well settled position. But that does not mean that Judges
should not say what the law is having regard to the purpose
for which the statute is enacted. That is not judicial legislation,
it is judicial function. While it is to the legislature to decide
what the law should be; it is for the Court to say what the law
means. To quote Justice G.P.Singh,
“The Courts are warned that they are not entitled to
usurp legislative function under the disguise of
interpretation and that they must avoid the danger
of an apriori determination of the meaning of a
provision based on their own preconceived notions
of ideological structure or scheme into which the
provision to be interpreted is somehow fitted.
Caution is all the more necessary in dealing with the
legislation enacted to give effect to policies that are
subject of bitter public and parliamentary
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controversy for in controversial matters there is
room for differences of opinion as to what is
expedient, what is just and what is morally
justifiable; it is the Parliament’s opinion in these
matters that is paramount. This only means that
Judges cannot interpret statutes in the light of their
views as to policy; but they can adopt a purposive
interpretation if they can find in the statute read as
a whole or in the material to which they are
permitted by law to refer as aids to interpretation an
expression of Parliament’s purpose or policy. So
there is no usurpation of function or danger when
the purpose or object of a statute is derived from
legitimate sources and the words are given an
interpretation which they can reasonably bear to
effectuate that purpose or object.” (emphasis
supplied)(Chapter I page 17)
A mechanical interpretation of the words without bearing in
mind the object of the legislation will defeat the purpose of the
legislation. In the words of Krishna Iyer, J., in Chairman,
Board of Mining Examination and Chief Inspector of
Mines v. Ramjee (AIR 1977 SC 965),
“to be literal in meaning is to see the skin and miss
the soul. The judicial key to construction is the
composite perception of the deha and the dehi of
the provision.”
To quote Chinnappa Reddy, J. in Reserve Bank of India v.
Pearless General Finance and Investment Co. (AIR 1987
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SC 1023), “Interpretation must depend on the text and the
context. They are the bases of interpretation. One may well
say if the text is the texture, context is what gives colour.
Neither can be ignored. Both are important. That
interpretation is best which makes the textual interpretation
match the contextual. A statute is best interpreted when we
know why it was enacted”(emphasis supplied). At the risk of
redundancy, I may state that the statute was enacted only to
suppress and prevent the mischief of unreasonble eviction and
not to give permanency of tenancy. In the matter of intention
of the legislature, according to Justice G.P.Singh, the words
used by the legislature do not always bear plain meaning and
even on the plain meaning itself, there could be doubts. That
is precisely the situation in the instant case. In such situations
of doubt, it is always safe to have an eye on the object and
purpose of the statute, or the reason of spirit behind it.
“
Th
e intention of the Legislature thus assimilatestwo aspects: In one aspect it carries the concept of
‘meaning’, i.e., what the words mean and in another
aspect, it conveys the concept of ‘purpose and
object’ or the ‘reason and spirit’ pervading through
the statute. The process of construction, therefore,
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combines both literal and purposive approaches. In
other words the legislative intention i.e., the true or
legal meaning of an enactment is derived by
considering the meaning of the words used in the
enactment in the light of any discernible purpose or
object which comprehends the mischief and its
remedy to which the enactment is
directed.”(Chapter I, page 10)
-x x x x x x –
”
B
ut words used by the Legislature do not alwaysbear a plain meaning. Moreover, judges quite often
differ on the issue whether certain words are plain
and even when there is an agreement that the
words are plain, difference of opinion may result on
the question as to what the plain meaning is. In
case of doubt, therefore, it is always safe to have an
eye on the object and purpose of the statute, or
reason and spirit behind it. “I say that we must look
to what the purpose is”, was said by LORD CAIRNS;
and it was observed by SIR JOHN NICHOLL that “the
key to the opening of every law is the reason and
the spirit of the law”. This aspect of ‘purpose’ is the
very foundation of the rule in Heydon’s case
reported by LORD COKE as far back as 1584.
Statutes “should be construed not as theorems of
Euclid”, said JUDGE LEARNED HAND, “but with some
imagination of the purposes which lie behind them.”
“Each word, phrase or sentence” observed
MUKHERJEA J. “is to be construed in the light of
general purpose of the Act itself”. In the words of
K.Iyer, J. the interpretative effort “must be illumined
by the goal though guided by the word”. (Chapter I,
Page 12)
79. It is not always safe to adopt the plain meaning
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of the words in a statute stating that it was the wisdom of the
legislature. As the learned author says, some times, the
legislature itself, if consulted would say that they did not even
comprehend such a situation. To quote “In all real
controversies of construction if it were open to consult the
Legislature as to its intention, the answer of most of the
legislators in all probability will be: ‘such a problem never
occurred to us, solve it as best as you can, consistent with the
words used, and the purpose indicated by us in the statute'”.
80. Thus viewed from any angle, it is crystal clear
that the special privilege granted to a person in continuous
occupation of a non-residential premises as a tenant ever
since 1.4.1940 is a personal privilege, not intended to be
inherited by his heirs, since the context otherwise requires the
expression to be read and interpreted so.
Sd/-
KURIAN JOSEPH, JUDGE.
Balakrishnan Nair, J.(Dissenting with K.Padmanabhan Nair, J.)
81. I had the benefit of reading the judgment in draft of my
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learned brother K.Padmanabhan Nair, J., who was requested to author
the main judgment on behalf of the Larger Bench. I consider it a
misfortune that I cannot agree with the conclusions of my learned and
noble brother. So, I am constrained to render this separate judgment.
The facts of the case and also the legal questions involved have been
elaborately stated by my learned brother in his judgment. Therefore, it
is unnecessary for me to re-state them. So, I straightaway proceed to
consider the point in controversy. The point that arises for decision,
though it is couched in a slightly different form in the reference order,
is, essentially whether the finding of the Full Bench of this Court in
Narayanan v. Shalima (2003(2) KLT 317 FB) that the protection
conferred on a tenant under Section 11(17) of the Kerala Buildings
(Lease and Rent Control) Act, 1965 (hereinafter referred to as ‘the Act’)
against eviction under Section 11(3) thereof, is a personal privilege
which dies with the death of the original tenant, who has continuous
occupation of the tenanted premises from 1.4.1940 and cannot be
inherited by his heirs, is liable to be upheld.
82. The term “tenant” has been defined in Section 2(6) of
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the Act. The said definition reads as follows:
“(6) ‘tenant’ means any person by whom or on whose
account rent is payable for a building and includes:–
(i) the heir or heirs of a deceased tenant, and
(ii) a person continuing in possession after the
termination of the tenancy in his favour, but does not
include a Kudikidappukaran as defined in the Kerala Land
Reforms Act, 1963 (Kerala Act 1 of 1964), or a person
placed in occupation of a building by its tenant, or a
person to whom the collection of rents or fees in a public
market, cart-stand or slaughter house or of rents for shops
has been farmed out or leased by a Municipal Council,
Municipal Corporation, Township Committee or
Panchayat.”
The Act came into force with effect from 1.4.1965. At that time the
word “tenant” was defined in the following manner:
“‘tenant’ means any person by whom or on whose
account rent is payable for a building and includes the
surviving spouse, or any son or daughter, of a deceased
tenant who had been living with the tenant in the building
as a member of the tenant’s family upto the death of the
tenant and a person continuing in possession after the
termination of the tenancy in his favour, but does not
include a Kudikidappukaran as defined in the Kerala Land
Refoms Act, 1963 (Kerala Act 1 of 1964), or a person
placed in occupation of a building by its tenant or a person
to whom the collection of rents or fees in a public market,
cart-stand or slaughter-house or of rents for shops has been
farmed out or leased by a municipal council or local board
or Panchayat or Corporation.”
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The above quoted old definition only recognized surviving spouse and
children, who had been living with the tenant as members of his family
up to his death, as tenants after the death of the original tenant. The said
definition was substituted with the present definition by Act 7 of 1966
with effect from 20.7.1966. The new definition covers all heirs,
irrespective of whether they are residing as members of the family with
the tenant or not. For convenient reference Section 11(17) of the Act is
quoted below:
“(17) Notwithstanding anything contained in this
section a tenant who has been in continuous occupation of
a building from 1st April 1940 as a tenant, shall not be
liable to be evicted for bona fide occupation of the
landlord or of the occupation by any member of his family
dependent on him, provided that a landlord of a residential
building shall be entitled to evict such a tenant of that
building if the landlord has been living in a place outside
the city, town or village in which the building is situated
for a period of not less than five years before he makes an
application to the Rent Control Court for being put in
possession of the building, and requires the building bona
fide for his own permanent residence or for the permanent
residence of any member of his family or the landlord is in
dire need of a place for residence and has none of his own.
Explanation:– In computing the period of
continuous occupation from 1st April, 1940, the period, if
any, during which the landlord was residing outside the
city, town or village in which the building is situated shall
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be excluded.”
83. Section 11 deals with eviction of tenants. The various
sub-sections of the said Section put fetters on the right of the landlord to
evict tenants. Section 11(17) casts a very special type of disability on
the landlord. A tenant mentioned under the sub-section cannot be
evicted on the ground available under Section 11(3). Normally, the
word “tenant” mentioned in Section 11(17) must include his heirs also,
in view of the definition of “tenant” contained in Section 2(6). Of
course, if the context otherwise requires, a meaning not given in the
dictionary of the statute can be ascribed to the word “tenant”. But, is
there anything different in the context, in which the word “tenant” is
used in Section 11(17), so as to discard the statutory meaning of that
word? Going by the plain language of the said sub-section, I cannot find
anything in the context, which compels one to attribute a different
meaning to the word “tenant”. When the words of the statute are plain
and clear, the court should give effect to the literal meaning of the
statute. That is the first and foremost rule of interpretation. Maxwell on
Interpretation of Statutes (12th Edition, page 28), deals with the concept
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of literal construction in the following words:
“The first and most elementary rule of construction
is that it is to be assumed that the words and phrases of
technical legislation are used in their technical meaning if
they have acquired one, and otherwise in their ordinary
meaning, and the second is that the phrases and sentences
are to be construed according to the rules of grammar.
‘The length and detail of modern legislation,’ wrote Lord
Evershed M.R., ‘has undoubtedly reinforced the claim of
literal construction as the only safe rule.’ If there is
nothing to modify, alter or qualify the language which the
statute contains, it must be construed in the ordinary and
natural meaning of the words and sentences. ‘The safer
and more correct course of dealing with a question of
construction is to take the words themselves and arrive if
possible at their meaning without, in the first instance,
reference to cases.” (Emphasis supplied)
84. In Craies on Statute Law (7th Edition, page 65), it is
stated that
“Where the language of an Act is clear and explicit, we
must give effect to it, whatever may be the consequences,
for in that case the words of the statute speak the intention
of the legislature.”
85. The learned author Justice G.P. Singh in his book
“Principles of Statutory Interpretation” (8th Edition, page 11-12) deals
with the literal rule, which is a cardinal principle of construction in the
following words:
“In all ordinary cases and primarily the language
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employed is the determining factor of intention. ‘The first
and primary rule of construction’, said
GAJENDRAGADKAR, J. ‘is that the intention of the
Legislature must be found in the words used by the
Legislature itself.’ The question is not what may be
supposed to have been intended but what has been said. ‘I
do not care what their intention was,’ said Mr. JUSTICE
HOLMES in a letter: ‘I only want to know what the words
mean.’ LORD BROUGHAM has more emphatically stated
the importance of the text of the statute in the following
words: ‘If the Legislature did intend that which it has not
expressed clearly; much more, if the Legislature intended
something very different; if the Legislature intended pretty
nearly the opposite of what is said, it is not for judges to
invent something which they do not meet within the words
of the text (aiding their construction of the text always, of
course, by the context).’ These and like opinions lay
stress on one aspect of intention, i.e., what the words
mean; and undoubtedly to the extent the ‘referent’ is clearly
indicated and the words have a ‘plain’ meaning, the courts
are not to busy themselves with ‘supposed intention’ or
with ‘the policy underlying the statute’.” (Emphasis
supplied)
86. Recently, the Hon’ble Supreme Court in Raghunath
Rai Bareja v. Punjab National Bank (2006 AIR SCW 6446), while
interpreting Section 31 of the Recovery of Debts Due to Banks and
Financial Institutions Act, has marshalled the decisions on literal
interpretation exhaustively and explained the said concept in the
following words:
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“39. In M/s. Hiralal Ratanlal vs. STO, AIR 19173
SC 1034, this Court observed:
‘In construing a statutory provision the first and
foremost rule of construction is the literary construction.
All that the Court has to see at the very outset is what does
the provision say. If the provision is unambiguous and if
from the provision the legislative intent is clear, the Court
need not call into aid the other rules of construction of
statutes. The other rules of construction are called into aid
only when the legislative intent is not clear.’
40. It may be mentioned in this connection that the
first and foremost principle of interpretation of a statute
in every system of interpretation is the literal rule of
interpretation. The other rules of interpretation e.g., the
mischief rule, purposive interpretation etc., can only be
resorted to when the plain words of a statute are
ambiguous or lead to no intelligible results or if read
literally would nullify the very object of the statute.
Where the words of a statute are absolutely clear and
unambiguous, recourse cannot be had to the principles of
interpretation other than the literal rule, vide Swedish
Match AB vs. Securities and Exchange Board India, AIR
2004 SC 4219. As held in Prakash Nath Khanna vs.
C.I.T., 2004(9) SCC 686, the language employed in a
statute is the determinative factor of the legislative intent.
The legislature is presumed to have made no mistake. The
presumption is that it intended to say what it has said.
Assuming there is a defect or an omission in the words
used by the legislature, the Court cannot correct or make
up the deficiency, especially when a literal reading thereof
produces an intelligible result, vide Delhi Financial
Corporation vs. Rajiv Anand, 2004(11) SCC 625. Where
the legislative intent is clear from the language, the Court
should given effect to it, vide Government of Andhra
Pradesh vs. Road Rollers Owners Welfare Association,
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2004(6) SCC 210, and the Court should not seek to amend
the law in the garb of interpretation.
41. As stated by Justice Frankfurter of the U.S.
Supreme Court (see ‘Of Law & Men : Papers and
Addresses of Felix Frankfurter’)
‘Even within their area of choice the courts are not at
large. They are confined by the nature and scope of the
judicial function in its particular exercise in the field of
interpretation. They are under the constraints imposed by
the judicial function in our democratic society. As a
matter of verbal recognition certainly, no one will gainsay
that the function in construing a statute is to ascertain the
meaning of words used by the legislature. To go beyond it
is to usurp a power which our democracy has lodged in its
elected legislature. The great judges have constantly
admonished their brethren of the need for discipline in
observing the limitations. A judge must not rewrite a
statute, neither to enlarge nor to contract it. Whatever
temptations the statesmanship of policy-making might
wisely suggest, construction must eschew interpolation
and evisceration. He must not read in by way of creation.
He must not read out except to avoid patent nonsense or
internal contradiction.’
42. As observed by Lord Granworth in Grundy v.
Pinniger, (1852)1 LJ Ch 405:
‘To adhere as closely as possible to the literal
meaning of the words used, is a cardinal rule from which if
we depart we launch into a sea of difficulties which it is
not easy to fathom.’
43. In other words, once we depart from the literal
rule, then any number of interpretations can be put to a
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statutory provision, each Judge having a free play to put
his own interpretation as he likes. This would be
destructive of judicial discipline, and also the basic
principle in a democracy that it is not for the Judge to
legislate as that is the task of the elected representatives of
the people. Even if the literal interpretation results in
hardship or inconvenience, it has to be followed (see
G.P.Singh’s Principles of Statutory Interpretations, 9th Edn.
Pp 45-49). Hence departure from the literal rule should
only be done in very rare cases, and ordinarily there should
be judicial restraint in this connection.
44. As the Privy Council observed (per Viscount
Simonds, L.C.):
‘Again and again, this Board has insisted that in
construing enacted words we are not concerned with the
policy involved or with the results, injurious or otherwise,
which may follow from giving effect to the language used.’
(see Emperor v. Benoarilal Sarma, AIR 1945 PC 48,
pg.53)
45. As observed by this Court in CIT vs. Keshab
Chandra Mandal, AIR 1950 SC 265:
‘Hardship or inconvenience cannot alter the meaning
of the language employed by the Legislature if such
meaning is clear on the face of the statute.’
46. The rules of interpretation other than the literal
rule would come into play only if there is any doubt with
regard to the express language used or if the plain
meaning would lead to an absurdity. Where the words are
unequivocal, there is no scope for importing any rule of
interpretation vide Pandian Chemicals Ltd. vs. C.I.T., 2003
(5) SCC 590.
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47. It is only where the provisions of a statute are
ambiguous that the Court can depart from a literal or strict
construction vide Nasiruddin vs. Sita Ram Agarwal, AIR
2003 SC 1543. Where the words of a statute are plain and
unambiguous effect must be given to them vide Bhaiji vs.
Sub-Divisional Officer, Thandla, 2003(1) SCC 692).
48. No doubt in some exceptional cases departure
can be made from the literal rule of the interpretation, e.g.,
by adopting a purposive construction, Heydon’s mischief
rule, etc., but that should only be done in very exceptional
cases. Ordinarily it is not proper for the Court to depart
from the literal rule as that would really be amending the
law in the garb of interpretation, which is not permissible,
vide J.P.Bansal vs. State of Rajasthan & Anr., AIR 2003
SC 1405, State of Jharkhand & Anr. vs. Govind Singh, JT
2004(10) SC 349 etc. It is for the legislature to amend the
law and not the Court, vide State of Jharkhand & Anr. vs.
Govind Singh, JT 2004 (10) SC 349. In Jinia Keotin vs.
K.S. Manjhi, 2003(1) SCC 730, this Court observed:
‘The Court cannot legislate………. under the garb of
interpretation….”
Hence there should be judicial restraint in this connection,
and the temptation to do judicial legislation should be
eschewed by the Courts. In fact, judicial legislation is an
oxymoron.
49. In Shiv Shakti Co-operative Housing Society
vs. Swaraj Developers, AIR 2003 SC 2434, this Court
observed:
‘It is a well settled principle in law that the Court
cannot read anything into a statutory provision which is
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plain and unambiguous. A statute is an edict of the
legislature. The language employed in a statute is the
determinative factor of legislative intent.’
50. In our opinion, Section 31 is plain and
unambiguous and it clearly says that only those suits or
proceedings pending before a Court shall stand transferred
to the Tribunal which were pending on the date when the
Tribunal was established.
51. The learned counsel for the respondent
submitted that we have to see the legislative intent when
we interpret Section 31. In our opinion, resort can be had
to the legislative intent for the purpose of interpreting a
provision of law when the language employed by the
legislature is doubtful or ambiguous or leads to some
absurdity. However, when the language is plain and
explicit and does not admit of any doubt, the Court cannot
by reference to an assumed legislative intent expand or
alter the plain meaning of an expression employed by the
legislature, vide Ombalika Das vs. Hulisa Shaw, 2002(4)
SCC 539.
52. Where the language is clear, the intention of the
legislature has to be gathered from the language used vide
Grasim Industries Limited vs. Collector of Customs, 2002
(4) SCC 297 and Union of India vs. Hamsoli Devi, 2002
(7) SCC 273.
53. In Union of India and another vs. Hansoli Devi
and others, 2002(7) SCC 273 (vide para 9), this Court
observed:
‘It is a cardinal principle of construction of a statute
that when the language of the statute is plain and
unambiguous, then the court must give effect to the words
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used in the statute and it would not be open to the courts to
adopt a hypothetical construction on the grounds that such
construction is more consistent with the alleged object and
policy of the Act.’
54. The function of the Court is only to expound the
law and not to legislate vide District Mining Officer vs.
Tata Iron and Steel Company, 2002(7) SCC 358. If we
accept the interpretation canvassed by the learned counsel
for the respondent we will really be legislating because in
the guise of interpretation we will be really amending
Section 31.
55. In Gurudevdatta VKSSS Maryadit vs. State of
Maharashtra, AIR 2001 SC 1980, this Court observed:
‘It is a cardinal principle of interpretation of statute
that the words of a statute must be understood in their
natural, ordinary or popular sense and construed according
to their grammatical meaning, unless such construction
leads to some absurdity or unless there is something in the
context or in the object of the statute to suggest to the
contrary. The golden rule is that the words of a statute
must prima facie be given their ordinary meaning. It is
yet another rule of construction that when the words of
the statute are clear, plain and unambiguous, then the
Courts are bound to give effect to that meaning,
irrespective of the consequences. It is said that the words
themselves best declare the intention of the law-giver. The
Courts are adhered to the principle that efforts should be
made to give meaning to each and every word used by the
legislature and it is not a sound principle of construction to
brush aside words in a statute as being inapposite
surpluses, if they can have a proper application in
circumstances conceivable within the contemplation of the
statute’.
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56. The same view has been taken by this Court in
S. Mehta vs. State of Maharashtra, 2001(8) SCC 257 (vide
para 34) and Patangrao Kaddam vs. Prithviraj Sajirao
Yadav Deshmugh, AIR 2001 SC 1121.
57. The literal rule of interpretation really means
that there should be no interpretation. In other words, we
should read the statute as it is, without distorting or
twisting its language.
58. We may mention here that the literal rule of
interpretation is not only followed by Judges and lawyers,
but it is also followed by the layman in his ordinary life.
To give an illustration, if a person says ‘this is a pencil’,
then he means that it is a pencil; and it is not that when he
says that the object is a pencil, he means that it is a horse,
donkey or an elephant. In other words, the literal rule of
interpretation simply means that we mean what we say and
we say what we mean. If we do not follow the literal rule
of interpretation, social life will become impossible, and
we will not understand each other. If we say that a certain
object is a book then we mean it is a book. If we say it is a
book, but we mean it is a horse, table or an elephant, then
we will not be able to communicate with each other. Life
will become impossible. Hence, the meaning of the literal
rule of interpretation is simply that we mean what we say
and we say what we mean.”(Emphasis supplied)
In the light of the above principles, we may now attempt to understand
the scope of Section 11(17). Going by the plain language of the said
Section, on the conditions therein being satisfied, a landlord cannot evict
his tenant who was in continuous occupation from 1.4.1940 and his
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heirs, under Section 11(3). This is the plain meaning of the provisions
in Section 11(17). I feel that we need venture to go after some other
intention of the legislature, if only the words of the statute are in any
way ambiguous.
87. We may attribute a different meaning from the ordinary
meaning, if the giving effect to the latter, results in absurdity. The said
rule is called the golden rule. Maxwell in Interpretation of Statutes (12th
Edition, page 43), explains the concept of golden rule in the following
words:
“The so-called ‘golden rule’ is really a modification
of the literal rule. It was stated in this way by Parke B.: ‘It
is a very useful rule, in the construction of a statute, to
adhere to the ordinary meaning of the words used, and to
the grammatical construction, unless that is at variance
with the intention of the legislature, to be collected from
the statute itself, or leads to any manifest absurdity or
repugnance, in which case the language may be varied or
modified, so as to avoid such inconvenience, but no
further.’ ‘If,’ said Brett L.J., ‘the inconvenience is not only
great, but what I may call an absurd inconvenience, by
reading an enactment in its ordinary sense, whereas if you
read it in a manner in which it is capable, though not its
ordinary sense, there would not be any inconvenience at
all, there would be reason why you should not read it
according to its ordinary grammatical meaning.'”
(Emphasis supplied)
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88. In ‘Principles of Statutory Interpretation’ by Justice G.P.
Singh (8th Edition, page 74-75), the concept of golden rule is dealt with
in the following manner:
“VISCOUNT SIMON, L.C., said : ‘The golden rule
is that the words of a statute must prima facie be given
their ordinary meaning’. Natural and ordinary meaning of
words should not be departed from ‘unless it can be
shown that the legal context in which the words are used
requires a different meaning’. Such a meaning cannot be
departed from by the judges ‘in the light of their own
views as to policy’ although they can ‘adopt a purposive
interpretation if they can find in the statute read as a whole
or in material to which they are permitted by law to refer
as aids to interpretation an expression of Parliament’s
purpose or policy’. For a modern statement of the rule
one may refer to the speech of LORD SIMON OF
GLAISDALE in a recent case where he said: ‘Parliament is
prima facie to be credited with meaning what is said in an
Act of Parliament. The drafting of statutes, so important
to a people who hope to live under the rule of law, will
never be satisfactory unless courts seek whenever possible
to apply ‘the golden rule’ of construction, that is to read
the statutory language, grammatically and
terminologically, in the ordinary and primary sense which
it bears in its context, without omission or addition. Of
course, Parliament is to be credited with good sense; so
that when such an approach produces injustice, absurdity,
contradiction or stultification of statutory objective the
language may be modified sufficiently to avoid such
disadvantage, though no further”.
89. Whether giving effect to the plain meaning will result in
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gross absurdity or repugnance, is to be ascertained with reference to the
words employed in the statute. I feel that such a contention cannot be
advanced or accepted, having regard to the scheme of the present
statute. The denial of right to a landlord for eviction, on a particular
ground, of a tenant having certain special attributes can, in no way, be
said to be generating absurd results. The State legislature has given
birth to several legislations, from Land Reforms Act to Private Forests
(Vesting and Assignment) Act, impinging upon the right to property.
Many have been deprived of their rights over lands and many with
limited title over them were made owners of the property. These are
matters, which come within the competence of the State legislature. The
“rights in or over land, including the relation between the landlord and
the tenant” come under item 18 of List II of the seventh schedule of the
Constitution of India. “Transfer of property other than agricultural land”
comes under entry 6 of List III. When a legislature is legislating on a
subject, it need not confine to a particular legislative entry. It can fall
back on all the entries, enabling it to legislate. In other words, one
legislation need not be a watertight compartment containing provisions
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only on one subject. So, if the legislature, while legislating on rent
control and eviction, grants limited immunity from eviction, of a
permanent nature, the same cannot be described as without competence.
See the relevant portion of Section 106 of the Kerala Land Reforms Act,
which reads as follows:
“106. Special provisions relating to leases for
commercial or industrial purposes.–(1) Notwithstanding
anything contained in this Act, or in any other law, or in
any contract, or in any order or decree of court, where on
any land leased for commercial or industrial purpose, the
lessee has constructed buildings for such commercial or
industrial purpose before the 20th May, 1967, he shall not
be liable to be evicted from such land, but shall be liable
to pay rent under the contract of tenancy, and such rent
shall be liable to be varied every twelve years.
Explanation.–For the purposes of this section,–
(a) ‘lessee’ includes a legal representative or an
assignee of the lessee; and
(b) ‘building’ means a permanent or a temporary
building and includes a shed.
(1A) The lessor or the lessee may apply to such
authority as may be prescribed for varying the rent referred
to in sub-section (1), and thereupon such authority may,
after taking into consideration such matters as may be
prescribed and after giving the lessor and the lessee an
opportunity of being heard, pass such orders on the
application as it deems fit.”
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By the above provision, a tenant of commercial premises, whose case
should come under the Rent Control legislation, has been dealt with
under the Land Reforms legislation and given protection from eviction.
No one has a case that Section 11(17) is unconstitutional. Therefore, it
is unnecessary for this Court to read down the said provision, to save it
from the alleged unconstitutionality.
90. The manifest reason for condemnation of Section 11
(17) is that it creates a perpetual tenancy, so far as non-residential
buildings are concerned. So, it runs counter to the avowed object and
policy of the Act, which is protection from unreasonable eviction,
according to the landlord. So, the interpretation sought to be placed by
the petitioner on the word “tenant” in the said Section is repugnant to
the object of the legislation, it is pointed out. But, there is another
provision in the Act, which creates, practically, perpetual tenancy. See
Section 11(11), which reads as follows:
“(11) Notwithstanding anything contained in sub-
sections (1) to (10), no order for eviction or for putting the
landlord in possession, shall be passed:–
(i) …………………………………………………….
(ii) in respect of any building which has been let for
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use as an educational institution, and is actually being used
as such, provided that the institution has been recognised
by the Government or any authority empowered by them in
this behalf, so long as such recognition continues.”
A building, even if it is let out recently for use as an educational
institution, which has recognition from the competent authority, can
never be evicted, as long as the user of the building is not changed and
the recognition remains in force. In the case of a non-residential
building covered by Section 11(17), the landlord can hope to evict the
heir, who is not in “occupation”, that is, who is not physically present.
Heirs in “possession” but not in “occupation” will not get the protection
of Section 11(17). But, Section 11(11)(ii) creates, practically, absolute
fetter on the right of the landlord for eviction. For that reason, can the
words of that provision be read down to mean that the protection
available under that provision will die with the original tenant? In my
humble view, the answer can only be an emphatic ‘no’. If such
protection can be granted to a tenant – School, why not grant it to a
tenant/his heir, who was in long occupation of a non-residential
building. I find no convincing reason to deny the protection sought.
91. While interpreting a statute, this Court may not venture
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to legislate. It is not authorized by the Constitution to amend or modify
a statute according to its notions of fairness and justice. Even if, by
giving effect to the plain meaning of a statute, unjust results are
generated, it is for the legislature to take care of the same and not the
courts. Courts are answerable only to law and God. They are not
answerable to the public or to the legislature. So, this Court will be
doing violence to the constitutional limitations, if it starts legislating.
Ours is a Government of the people and not of the courts. It is for the
legislature to say what should be the law. The court is normally called
upon to say what was the law in a past transaction. It is true, it is for the
courts to say what the law means, but they have to say it ‘according to
rules of reason and justice’ and ‘not according to private opinion’. If, in a
litigation between two parties, this Court is going to amend a legislation,
the people will lose their right to self determination, as to what laws
should govern them. Abraham Lincoln in his first inaugural speech said:
“The candid citizen must confess that if the policy
of the Government upon vital questions is to be
irrevocably fixed by decisions of Supreme Court, the
instant they are made in ordinary litigations between
parties in personal actions, the people will have ceased to
be their own rulers, having to that extent, practically
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resigned their own Government into the hands of that
eminent tribunal.”
92. Ours is a democratic country with a system of
‘responsible’ Government. A Government which is answerable to the
legislature and can hold office only when it has the confidence of
majority of the members of the State legislature, is called ‘responsible’
Government. If the courts are to take decisions on executive and
legislative matters, it will throw up a legal conundrum, where the
decision will be that of the courts and the responsibility will be that of
the Government. The said situation is sure to undermine the symmetry
in our Constitution. The Apex Court in R.K.Garg v. Union of India
[(1981)4 SCC 675(CB)], while considering the constitutional validity of
a statutory provision, held as follows:
“7. …………………………….the legislature understands
and correctly appreciates the needs of its own people, its
laws are directed to problems made manifest by experience
and its discrimination are based on adequate grounds. The
presumption of constitutionality is indeed so strong that
in order to sustain it, the Court may take into consideration
matters of common knowledge, matters of common report,
the history of the times and may assume every state of facts
which can be conceived existing at the time of legislation.
8. Another rule of equal importance is that laws
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relating to economic activities should be viewed with
greater latitude than laws touching civil rights such as
freedom of speech, religion etc. It has been said by no less
a person than Holmes, J. that the legislature should be
allowed some play in the joints, because it has to deal with
complex problems which do not admit of solution through
any doctrinaire or strait-jacket formula and this is
particularly true in case of legislation dealing with
economic matters, where, having regard to the nature of the
problems required to be dealt with, greater play in the
joints has to be allowed to the legislature. The court
should feel more inclined to give judicial deference to
legislative judgment in the field of economic regulation
than in other areas where fundamental human rights are
involved. Nowhere has this admonition been more
felicitously expressed than in Morey v. Doud (354 US
457) where Frankfurter, J. said in his inimitable style:
‘In the utilities, tax and economic regulation cases,
there are good reasons for judicial self-restraint if not
judicial deference to legislative judgment. The legislature
after all has the affirmative responsibility. The courts have
only the power to destroy, not to reconstruct. When these
are added to the complexity of economic regulation, the
uncertainty, the liability to error, the bewildering conflict
of the experts, and the number of times the judges have
been overruled by events–self-limitation can be seen to be
the path to judicial wisdom and institutional prestige and
stability.’
The Court must always remember that ‘legislation is
directed to practical problems, that the economic
mechanism is highly sensitive and complex, that many
problems are singular and contingent, that laws are not
abstract propositions and do not relate to abstract units and
are not to be measured by abstract symmetry’ ; ‘that exact
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wisdom and nice adaption of remedy are not always
possible’ and that ‘judgment is largely a prophecy based on
meagre and uninterpreted experience’. Every legislation
particularly in economic matters is essentially empiric and
it is based on experimentation or what one may call trial
and error method and therefore it cannot provide for all
possible situations or anticipate all possible abuses. There
may be crudities and inequities in complicated
experimental economic legislation but on that account
alone it cannot be struck down as invalid. The courts
cannot, as pointed out by the United States Supreme Court
in Secretary of Agriculture v. Central Reig Refining
Company [338 US 604 (1950)] be converted into tribunals
for relief from such crudities and inequities. There may
even be possibilities of abuse, but that too cannot of itself
be a ground for invalidating the legislation, because it is
not possible for any legislature to anticipate as if by some
divine prescience, distortions and abuses of its legislation
which may be made by those subject to its provisions and
to provide against such distortions and abuses. Indeed,
howsoever great may be the care bestowed on its framing,
it is difficult to conceive of a legislation which is not
capable of being abused by perverted human ingenuity.
The Court must therefore adjudge the constitutionality of
such legislation by the generality of its provisions and not
by its crudities or inequities or by the possibilities of abuse
of any of its provisions. If any crudities, inequities or
possibilities of abuse come to light, the legislature can
always step in and enact suitable amendatory legislation.
That is the essence of pragmatic approach which must
guide and inspire the legislature in dealing with complex
economic issues.
Xxxxxxx xxxxxxx xxxxx xxxxx
19. …………………………………….The Court must
always bear in mind the constitutional proposition
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enunciated by the Supreme Court of the United States in
Munn v. Illinois (94 US 13), namely, ‘that courts do not
substitute their social and economic beliefs for the
judgment of the legislative bodies’. The Court must defer
to legislative judgment in matters relating to social and
economic policies and must not interfere, unless the
exercise of legislative judgment appears to be palpably
arbitrary. The Court should constantly remind itself of
what the Supreme Court of the United States said in
Metropolis Theater Company v. City of Chicago [228 US
61 (1912)]:
‘The problems of government are practical ones and
may justify, if they do not require, rough accommodation,
illogical it may be, and unscientific. But even such
criticism should not be hastily expressed. What is best is
not always discernible, the wisdom of any choice may be
disputed or condemned. Mere errors of government are
not subject to our judicial review’.”(Emphasis supplied)
93. Mr.Justice Frankfurter in his dissenting opinion in West
Virginia State Board of Education v. Barnette 319 US 624 (1943),
advocated the need for judicial restraint while considering the validity of
a legislation. The case arose, as the children of jehovah’s witnesses
refused to perform the flag salute, defying the mandatory provision of a
law in force in the State of West Virginia. The said provision was
challenged as unconstitutional. Though, earlier the said law was held to
be constitutional on more than one occasion by the American Supreme
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Court, this time it was held to be unconstitutional by the majority. In his
powerful dissenting opinion, which is respected the world over, the
learned Judge observed:
“As a member of this Court, I am not justified in writing
my private notions of policy into the Constitution, no
matter how deeply I may cherish them or how
mischievous I may deem their disregard. The duty of a
judge who must decide which of two claims before the
Court shall prevail, that of a State to enact and enforce
laws within its general competence or that of an individual
to refuse obedience because of the demands of his
conscience, is not that of the ordinary person.
It can never be emphasized too much that one’s own
opinion about the wisdom or evil of a law should be
excluded altogether when one is doing one’s duty on the
bench. The only opinion of our own even looking in that
direction that is material is our opinion whether legislators
could, in reason, have enacted such a law. In the light of
all the circumstances, including the history of this question
in this Court, it would require more daring than I possess
to deny that reasonable legislators could have taken the
action which is before us for review. Most unwillingly,
therefore, I must differ from my brethren with regard to
legislation like this. …………………..
For the removal of unwise laws from the statute books,
appeal lies not to the courts, but to the ballot and to the
processes of democratic government…… .
The Constitution does not give us greater veto power
when dealing with one phase of ‘liberty’ than with another,
or when dealing with grade school regulations than with
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college regulations that offend conscience. In neither
situation is our function comparable to that of a legislature,
or are we free to act as through we were a super-
legislature. ………………………..
The reason why, from the beginning, even the narrow
judicial authority to nullify legislation has been viewed
with a jealous eye is that it serves to prevent the full play
of the democratic process. The fact that it may be an
undemocratic aspect of our scheme of government does
not call for its rejection or its disuse. But it is the best of
reasons, as this Court has frequently recognized, for the
greatest caution in its use……. .
Tact, respect, and generosity toward variant views will
always commend themselves to those charged with the
duties of legislation so as to achieve a maximum of good
will and to require a minimum of unwilling submission to
a general law. But the real question is, who is to make
such accommodations, the courts or the
legislature?…………………….
A court can only strike down. It can only say ‘This or that
law is void’. It cannot modify or qualify, it cannot make
exceptions to a general
requirement………………………………….
If the function of this Court is to be essentially no different
from that of a legislature, if the considerations governing
constitutional construction are to be substantially those
that underlie legislation, then indeed judges should not
have life tenure, and they should be made directly
responsible to the electorate. There have been many, but
unsuccessful, proposals in the last 60 years to amend the
Constitution to that end…………………….. .
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I think I appreciate fully the objections to the law before
us. But to deny that it presents a question, upon which
men might reasonably differ, appears to me to be
intolerance. And since men may so reasonably differ, I
deem it beyond my constitutional power to assert my view
of the wisdom of this law against the view of the State of
West Virginia……………….
The attitude of judicial humility which these
considerations enjoin is not an abdication of the judicial
function. It is a due observance of its
limits……………………………………………………..
Courts, as has often been said, are not to think of the
legislators, but of the legislature–the great, continuous
body itself, abstracted from all the transitory individuals
who may happen to hold its power. It is this majestic
representative of the people whose action is in question, a
coordinate department of the Government, charged with
the greatest functions, and invested, in contemplation of
law, with whatsoever wisdom, virtue, and knowledge the
exercise of such functions requires.
To set aside the acts of such a body, representing in
its own field, which is the very highest of all, the ultimate
sovereign, should be a solemn, unusual, and painful act.
Something is wrong when it can ever be other than that.
And if it be true that the holders of legislative power are
careless or evil, yet the constitutional duty of the court
remains untouched; it cannot rightly attempt to protect the
people by undertaking a function not its own. On the other
hand, by adhering rigidly to its own duty, the court will
help, as nothing else can, to fix the spot where
responsibility lies, and to bring down on that precise
locality the thunderbolt of popular condemnation.”
(Emphasis supplied)
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Though the above wise words are found in a dissenting judgment, they
are well settled principles concerning judicial restraint and deference to
judicial wisdom, while considering the validity of a statute. They serve
as the load-star to the judicial mariners voyaging the turbulent waters of
social issues.
94. I have extensively quoted from the decision of the Apex
Court in R.K.Garg v. Union of India [(1981)4 SCC 675] and also from
the opinion of Justice Frankfurter, to stress the point that a legislation
will be struck down by this Court only sparingly and that too on
compelling grounds. The people of Kerala through their representatives
in the legislature, have the right to decide what laws should govern
them, subject, of course, to the constitutional limitations. The courts
should respect the judgment and wisdom of the legislature on social
issues, reflecting the will of “we, the people”. The Judges, however
learned or erudite they may be, may not substitute their judgment for that
of the legislature. These principles will squarely apply to this case, as
the provisions in Section 11(17) of the Act have been struck down by the
Full Bench in Narayanan’s case, though it is not expressly stated so.
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The legal effect of the Full Bench decision is that the meaning of the
word “tenant” in Section 11(17) defined in Section 2(6), is struck down
to the extent it includes heirs of the deceased tenant, for the purpose of
Section 11(17). The action of the Full Bench can be described as also
adding an explanation to Section 11(17), stating that the word “tenant”
used therein does not have the meaning assigned to it in Section 2(6).
Thus, with great respect, it is pointed out that the Full Bench has
ventured to judicially amend Section 11(17) and has thus entered the
constitutionally forbidden terrain. This was done without adverting to
the well settled canons of interpretation. It was done on very slender
grounds. The Full Bench proceeded on the footing that the clog on
eviction will make the provision unconstitutional. But, the Constitution
confers on the State legislature powers to make permanent clog on
eviction and such powers have been successfully exercised by it. See
Section 11(11)(ii) of the Act and also Section 106 of the Kerala Land
Reforms Act. Further, the Full Bench failed to notice that the provisions
of Section 11(17) starts with a non obstante clause. So, the provisions of
the said sub-section will prevail over other sub-sections. The benefit
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conferred on the tenant under Section 11(17), granting exemption from
the operation of Section 11(3), subject to satisfying certain stipulations,
is a right conferred on a tenant. It creates a corresponding duty in the
landlord and the Rent Control Court. So, it is pointed out with great
respect that the view expressed by the Full Bench that the benefit
conferred on the tenant is a personal privilege of the original tenant,
appears to be not correct. I have failed to persuade myself to subscribe
to the views of my learned brother Padmanabhan Nair, J., in his
judgment as he is endorsing the views of the Full Bench.
95. Giving due deference to the legislative judgment and
giving effect to the plain words of the statute, I feel that there is nothing
to be interpreted in Section 11(17) of the Act. Even assuming there is
any ambiguity in the statute, the same should go in favour of the tenant,
in view of the decisions of the Apex Court. The Apex Court in Mohd.
Shafi v. Addl.Distt. And Sessions Judge [(1977)2 SCC 226] held as
follows:
“If the language of the Explanation is susceptible of two
interpretations, we should prefer that which enlarges the
protection of the tenant rather than that which restricts it.”
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Again, the Apex Court in Mani Subrat Jain v. Raja Ram Vohra
[(1980)1 SCC 1] observed as follows:
“5. It is too platitudinous to preach and too
entrenched to shake, the proposition that rent control
legislation in a country of terrible accommodation shortage
is a beneficial measure whose construction must be liberal
enough to fulfil the statutory purpose and not frustrate it.
So construed, the benefit of interpretative doubt belongs to
the potential evictee unless the language is plain and
provides for eviction. That intendment must, by
interpretation, be effectuated. This is the essence of rent
control jurisprudence.”
96. In the background of the above legal setting, which was
not adverted to by the Full Bench, I am of the humble view that the
decision in Narayanan v. Shalima (2003(2) KLT 317 FB) that the
right of the original tenant under Section 11(17) of the Act will not
devolve upon his heirs, does not lay down the correct legal position.
The heirs of the tenant are also entitled to the protection, provided
under the said sub-section against eviction under Section 11(3) of the
Act. The reference is answered as above.
97. After, I almost finalised my judgment, I had the benefit
of reading the brilliant and illuminative judgments of K.A.Abdul Gafoor
and Kurian Joseph, JJ. I fully agree with the conclusions of Abdul
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Gafoor, J. With great respect, I am unable to endorse the views of
Kurian Joseph, J.
Sd/-
K.BALAKRISHNAN NAIR
Judge.
Padmanabhan Nair, J.
98. Whether the heirs of a tenant who was in occupation
of the building from 1.4.1940 and has been in continuous occupation
of the same till his death are entitled to the protection under Section 11
(17) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (`Rent
Act’ for short), from being evicted on the ground of bona fide need of the
landlord is the question to be decided on the reference.
99. Revision Petitioners were the respondents/tenants in
R.C.P.No. 53 of 1997 on the file of Additional Munsiff & Rent
Controller, Kozhikode, who were the appellants in R.C.A.No.218 of
1998 on the file of the Additional District Court and Rent Control
Appellate Authority, Kozhikode. Respondent-landlady filed Rent
Control Petition for eviction of revision petitioners under Sections 11
(2)(b) (arrears of rent), 11( 3) (own occupation for the landlady’s son)
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and 11(4) (i) (sub-letting) of the Rent Act. The following were the
material averments in the petition. Late Vikkara Vellodi, predecessor-
in-interest of the landlady let out petition schedule building bearing
Door No.13/651(old No.12/268) of Municipality on 17-11-1950 to late
A.M.Velayudhan who was the predecessor-in-interest of the revision
petitioners. The rights of the landlord devolved upon the landlady
under Ext.A1 deed dated 27-02-1974. Tenants defaulted payment of
rent since July, 1995. They sub-let the building without the knowledge
and consent of the landlady. The landlady bona fide needed the
tenanted premises for the occupation of her son who is dependent on her,
to start a business in home appliances. Revision petitioners contended
that the building was let out to late Velayudhan on 1-4-1936 on a
monthly rent of Rs.9/- and subsequently the rent was enhanced to
Rs.75/-. The landlady refused to accept the rent which was sent by
money order. There was no wilful default on the part of the tenant.
Late A.M.Velayudhan was doing business in the building from 1936 to
1973 and he was solely depending on the income derived from the
business for his livelihood. After the death of the original tenant, his
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widow Ammukutty was doing business till 1978 and on her death, fourth
revision petitioner, who is the son of original tenant, was doing business.
3rd and 4th respondents are solely depending on the income derived from
the business conducted in the petition schedule building and no suitable
building was available in the locality. It was contended that the need
put forward by the landlady is only a ruse to evict the petitioners and the
same was not bona fide. The averment that the tenants sublet the
building was denied. Since the tenancy originated in the year 1936, the
tenants had acquired a right of permanent tenancy. The revision
petitioners are permanent tenants and they are entitled to get all benefits
conferred on such tenants under the Rent Act.
100. The Rent Controller, after considering the evidence,
rejected the claim for eviction put forward by the landlady under Section
11(2)(b) and 11(4)(i) of the Rent Act. The need put forward by the
landlady was found to be genuine. Rent Controller found that Exts.B2
to B16 rent receipts produced by revision petitioners to substantiate
their contention that the entrustment was in the year 1936 will not show
that those receipts are in respect of the petition schedule building. It
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was also found that the earliest receipt was dated 6-10-1941. The Rent
Controller also relied on a decision inter parties in R.C.P.No.10 of
1977, which was a proceeding initiated for fixation of fair rent. It was
found that the date of entrustment was in the year 1950 and that finding
was confirmed by the Appellate Authority as well as the revisional court
in R.C.R.P.No.96 of 1979. It was held that Ext.A3 order in
R.C.R.P.No.96 of 1979 will operate as res judicata. Based on these
materials, Rent Controller held that the entrustment was on 17-11-1950
for a monthly rent of Rs.75/- and hence the revision petitioners are not
entitled to get the benefits under Section 11(17) of the Rent Act.
Revision Petitioners appealed. Rent Control (Appellate Authority) held
that in view of Exts.B2 to B16, the contention of the landlady that the
entrustment was in the year 1950 cannot be accepted. However it was
found that the earliest receipt was dated 22-7-1941. It was further held
that there were no other documents produced by the revision petitioners
to prove possession of the building by deceased Velayudhan prior to
1940. So it was held that the tenants failed to prove that their
predecessor was in possession of the building prior to 1-4-1940.
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Appellate Authority confirmed the finding of Rent Control Court that
the revision petitioners are not entitled to claim protection under Section
11(17) of the Act. Challenging those decisions, this Civil Revision
Petition has been filed.
101. When the case was heard by a Division Bench,
counsel appearing for revision petitioners attacked the correctness of a
Full Bench decision of this Court reported in Narayanan v. Shalima
(2003(2) K.L.T.317 (F.B.)) in which it was held that the benefit
conferred on the tenant under Section 11(17) of the Act is personal and
that it cannot be inherited by his legal heirs. Before the Division Bench,
revision petitioners filed C.M.P.No.4433 of 2001 to accept fresh
documents as additional evidence in the C.R.P and prayed for a remand.
The Division Bench observed that ‘if the decision of the Full Bench was
to hold the field, adjudication of the question might have given little
relief, since the tenants were successors-in-interest and the benefits
spoken to by section 11(17) of the Act were to be confined to the
original tenants alone’. Division Bench was also of the view that the
principles laid down in the decisions reported in Gian Devi Anand v.
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Jeevan Kumar (A.I.R.1985 S.C.796), Karthiayani v. Anandan (2004(2)
K.L.T 575) and George Peter v. T.K.Sali (I.L.R.1999(1) Kerala 529)
had not been cited and considered by the Full Bench and hence a fresh
examination of the issue was necessary and referred the matter to be
heard by a larger Bench.
102. When the matter was placed before the Full Bench it
was observed that in Narayanan’s Case (supra) this Court interpreting
Section 11(17) of the Act, had held that `the context in which the
expression “tenant” has been used under the above provision required
the adoption of a restricted meaning than the one ascribed to the said
expression in the definition of the said expression under Section 2(6) of
the Act and that the benefit conferred under Section 11(17) of the Act is
a personal privilege conferred on the tenant who has to be in possession
of the premises as a tenant on 1-4-1940 and who continued as such’. Full
Bench formulated three questions. In this Reference we are mainly
concerned with the third point. It reads as follows:-
“Even if it is found that deceased A.M.Velayudhan
has been in continuous occupation of the shop room in
question as a tenant from 1-4-1940 onwards and continued
as such until his death in the year 1973, are the revision
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petitioners who are the legal heirs of the said Velayudhan
entitled to claim the benefit of immunity from eviction
under Sec.11(17) of the Act as an inherited right, in a Rent
Control Petition filed in the year 1997?”.
The Full Bench was prima facie inclined to agree with the decision
rendered in Narayanan’s Case (supra) that the benefit which was sought
to be conferred on the tenant is a personal privilege; but it was held that
there may be cases wherein the conferee of the privilege was in
continuous occupation of the premises from 1-4-1940 as a tenant and
died only after the commencement of the Act. It was further opined that
if the landlord sought eviction in the year 1970 Velayudhan could have
successfully resisted the application and claimed permanency under
Section 11(7) of the Rent Act. It was further held that whether such a
right available to Velayudhan after the commencement of the Act will
stand extinguished on his death in the year 1973 is also to be considered.
The Full Bench was of the opinion that the principle laid down in
Narayanan’s Case (supra) requires re-consideration and hence referred
the matter to the Larger Bench.
103. To understand and appreciate the meaning of Section
11(17) of the Act, it is necessary to know the legislative history also.
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Prior to the formation of the State of Kerala, law prevailing in
Travancore-Cochin area was the Travancore Cochin (Buildings Lease
and Rent Control) Order 1950. It was passed under Section 13 of the
Travancore Cochin Public Safety Measures Act, 1950. In Malabar
District, the law applicable was that of the State of Tamil Nadu.
Initially, the law prevailing in Madras State was the Madras Rent
Control Order, 1941. In the year 1945 two separate orders were issued,
in respect of residential buildings Madras House Rent Control Order
1945 and the Madras Non-Residential Building Rent Control Order
1945 in respect of non-residential buildings. Those orders were
followed by the Madras Buildings (Lease and Rent Control) Act, 1946.
Section 18 of the Act (Act XV of 1946) provides that all proceedings
commenced and taken under the Madras House Rent Control Order,
1945 and Madras Non Residential Building Rent Control Order, 1945,
and pending at the commencement of the Act were deemed to have
been commenced or taken under the corresponding provisions of the
Act. That Act was repealed by Madras Building (Lease and Rent
Control) Act, 1949. Some of the provisions in that Act were amended by
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the Madras Buildings (Lease and Rent Control) Act, 1951.
Subsequently, that Act was repealed by Tamil Nadu Buildings (Lease
and Rent Control) Act, 1964 (Tamil Nadu Act 18/1964). A perusal of
the orders and Acts referred to above shows that none of the orders or
Acts contain a provision similar or akin to that of section 11(17) of the
Kerala Rent Act. It is also pertinent to note that Rent Control Acts of
Andhra Pradesh, Bihar, Bombay, Delhi, Haryana, Karnataka, Madhya
Pradesh, Maharashtra, Rajasthan, Tamil Nadu, U.P. and West Bengal
now in force in Union of India also do not contain a provision similar to
Section 11(17) of the Rent Act.
104. The Kerala Buildings (Lease and Rent Control)
Ordinance, 1959 was promulgated with effect from 17th June, 1959
repealing the Travancore Cochin Buildings (Lease and Rent Control)
Act, 1950 and also the Madras (Lease and Rent Control) Act as in force
in the Malabar District referred to in section 4 of the States Re-
organisation Act, 1956. Section 11 of the Ordinance deals with eviction
of a tenant but it had only sixteen sub-sections. The Ordinance did not
contain any provision similar to Section 11(17) of the present Rent Act.
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The Kerala Buildings (Lease and Rent Control) Bill, 1958 was placed
before the Legislative Assembly on 12-12-1958. Section 11 of Bill
shows that it deals with eviction of a tenant. It contains only sixteen
sub-sections. The Bill also did not contain any provision corresponding
to Section 11(17) of the Rent Act. The Bill was sent to Select
Committee. The Select Committee considered the Bill clause by
clause and submitted a report. Section 11 of the Bill dealt with eviction
of the tenant. The Bill approved by Select Committee also did not
contain a provision similar to the present section 11(17). But when the
Bill came up for discussion before the Legislative Assembly on 31-3-
1959, the Law Minister moved an amendment to Section 11 to add sub-
section 17 also. The amendment proposed reads as follows:-
“(17) Notwithstanding anything contained
in this section a tenant who has been in
continuous occupation of a building for a period
of fifteen years either as tenant or otherwise, shall
not be liable to be evicted for bona fide
occupation of the landlord or of the occupation
by any member of his family provided that a
landlord of a residential building shall be entitled
to evict such a tenant of that building if the
landlord has been living in a place outside the
city, town or village in which the building is
situated for a period of not less than five years
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immediately before he makes an application to
the Rent Control Court for being put in
possession of the building and requires the
building, bona fide for his own permanent
residence or of the permanent residence of any
member of his family or the landlord is in dire
need of a place for residence and has none of his
own”.
The amendment was opposed. The Law Minister agreed to delete words
‘or otherwise’ and ‘immediately’ and also agreed to change the
expression ‘for a period of 15 years’ to ‘from 1-4-1940’ from the
proposed amendment. He agreed to add an explanation to the Section
also. That amendment was put to vote and carried. It reads as follows:-
“(17) Notwithstanding anything
contained in this section, a tenant who has been
in continuous occupation of a building from 1st
April 1940 as a tenant shall not be liable to be
evicted for bona fide occupation of the landlord,
or of the occupation by any member of his family
provided that a landlord of a residential building
shall be entitled to evict such a tenant of that
building if the landlord has been living in a place
outside the city, town or village in which the
building is situated for a period of not less than
five years before he makes an application to the
Rent Control Court for being put in possession
of the building and requires the building, bona
fide for his own permanent residence or of the
permanent residence of any member of his family
or the landlord is in dire need of a place for
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residence and has none of his own.
Explanation.- In computing the period of fifteen
years, the period, if any, during which the landlord
was residing outside the city, town or village in
which the building is situate shall be excluded.”
Subsequently the words “of fifteen years” were deleted in the
Explanation and words “continuous occupation” were added.
105. The objects and reasons or the debate on the
enactment do not contain any indication as to why the Legislature made
such a provision regarding the tenant who came into occupation of the
building prior to 1-4-1940. Section 11(17) of the Rent Act reads as
follows:-
“11. Eviction of tenants:-.. . . . . . . . .
. . . . . . . . . . . . . . ”(17)Notwithstanding
anything contained in this section a tenant who
has been in continuous occupation of a building
from 1st April1940 as a tenant, shall not be liable
to be evicted for bona fide occupation of the
landlord or of the occupation by any member of
his family dependent on him, provided that a
landlord of a residential building shall be entitled
to evict such a tenant of that building if the
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landlord has been living in a place outside the
city, town or village in which the building is
situated for a period of not less than five years
before he makes an application to the Rent
Control Court for being put in possession of the
building, and requires the building bona fide for
his own permanent residence or for the
permanent residence of any member of his family
or the landlord is in dire need of a place for
residence and has none of his own.
Explanation:- In computing the period of
continuous occupation from 1st April, 1940, the
period, if any, during which the landlord was
residing outside the city, town or village in which
the building is situated shall be excluded.”
The Explanation provides that in computing the period of continuous
occupation from 1-4-1940, the period in which the landlord was residing
outside the city, town or village in which the building is situated shall be
excluded. Both sides were not able to give us a satisfactory meaning of
the Explanation.
106. The preamble of the Rent Act says that the Act is
meant to regulate the leasing of buildings and to control the rent of such
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buildings in the State of Kerala. A perusal of the objects and reasons
shows that the Act is also meant for prevention of unreasonable eviction
of tenants from the buildings. Section 2(3) of the Rent Act defines `land
lord’ and Section 2(6) defines ‘tenant’. Sub-sections (3) and (6) of
Section 2 read as follows:
“2. Definitions:- In this Act, unless the
context otherwise requires,-
(1) …………….
(2)……….
(3). “landlord” includes the person who is
receiving or is entitled to receive the rent of a
building, whether on his own account or on
behalf of another or on behalf of himself and
others or as an agent, trustee, executor,
administrator, receiver or guardian or who would
so receive the rent or be entitled to receive the
rent, if the building were let to a tenant”.
(4) .. . . . . . . . . . . .
(5). . . . . . . . . . . . .
(6) “tenant” means any person by whom or on
whose account rent is payable for a building and
includes:-
(i) the heir or heirs of a deceased tenant,
and
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(ii) a person continuing in possession after the
termination of the tenancy in his favour, but does
not include a Kudikidappukaran as defined in the
Kerala Land Reforms Act, 1963 (Kerala Act 1 of
1964), or a person placed in occupation of a
building by its tenant, or a person to whom the
collection of rents or fees in a public market,
cart-stand or slaughter house or of rents for
shops has been farmed out or leased by a
Municipal Council, Municipal Corporation,
Township Committee or Panchayat.
(7) . . . . . . . . . . . . . . . . . . .”
The word `tenant’ includes the legal heir/heirs of a deceased tenant and a
statutory tenant. Kudikidappukaran as defined in the Kerala Land
Reforms Act is specifically excluded from the definition of tenant. Use
of the words “unless the context otherwise requires” in the beginning of
Section 2 of the Rent Act shows that the definition of the word `tenant’
under the Rent Act is not exhaustive.
107. A perusal of the various sections of the Rent Act
shows that it is not meant to confer any fixity or permanent tenancy.
Kudikidappukaran as defined in the Kerala Land Reforms Act is
specifically excluded from the definition of the tenant as can be seen
from Section 2(6) of the Rent Act. Second proviso to Section 11(1) of
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the Rent Act makes the position very clear.
”11. Eviction of tenants:-
(1) . . . . . . . .
Provided that nothing contained in this
section shall apply to a tenant whose landlord is
the State Government or the Central Government
or other public authority notified under this Act.:
Provided further that where the tenant
denies the title of the landlord or claims right of
permanent tenancy, the Rent Control Court
shall decide whether the denial or claim is bona
fide and if it records a finding to that effect, the
landlord shall be entitled to sue for eviction of
the tenant in a Civil Court and such Court may
pass a decree for eviction on any of the grounds
mentioned in this section, notwithstanding that
the Court finds that such denial does not involve
forfeiture of the lease or that the claim is
unfounded.” (emphasis supplied).
The Rent Act does not define the words ” permanent tenancy”. It is to be
noted that a lease in perpetuity can be created either by an express grant
or by a presumed grant. Normally such leases are agricultural leases or
they were executed before the commencement of Transfer of Property
Act. It is also trite law that if the lease is silent regarding duration of the
term to create a tenancy at will it could be converted by payment of rent
into a tenancy from year to year or month to month. In view of the
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provisions contained in the second proviso to Section 11(1) of the Rent
Act, if the tenant puts forward a contention of permanent tenancy, the
Rent Control Court cannot decide that issue. The Rent Control Court
can only consider whether such claim is bona fide. If the claim is bona
fide, the Rent Control Court shall record a finding to that effect and
direct the parties to approach a civil court.
108. It is argued that the bar is to claim eviction under
Section 11(3) of the Rent Act alone and the landlord can maintain an
action for eviction on all other grounds. It is true that Section 11(17)
applies only to cases filed under Section 11(3) of the Act. Ground
available under Section 11(3) is a very valuable right. If eviction is
ordered under Section 11(2)(b) the tenant can deposit the arrears of rent
and ask for vacating the order of eviction under Section 11(2)(c) of the
Act. Before initiating action under Section 11(4)(i) the landlord is
bound to give a notice. If the tenant terminates the sub-tenancy within
the stipulated time, the landlord may not get any relief. If eviction is
sought on the ground of reconstruction or renovation the tenant has the
first option for re-occupation. So there is no merit in the argument that
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there is no restriction to the landlord to file an application for eviction on
other grounds enumerated in Section 11 of the Rent Act.
109. Learned counsel appearing for the revision petitioners
has relied on Section 106 of the Kerala Land Reforms Act and contended
that the Legislature has got every power to exempt a tenancy
arrangement from the operation of the Act. Section 106 of the
K.L.R.Act deals with Special provisions relating to lease for commercial
or industrial purposes. If the lessee had constructed a building for such
commercial or industrial purpose before a particular date, he shall not be
liable to be evicted. It is to be noted that the very purpose of bringing
such a legislation was to confer fixity of tenure on the tenants. The
K.L.R. Act is meant to protect the kudikidappukars and tenants from
eviction and also confer fixity of tenure. So where ever the Legislature
intended to create permanency or fixity, provisions were made
appropriately in the concerned Legislation. Both laws are separate and
distinct and operate at different fields. Moreover interpretation of
various provisions of one Act cannot be taken as a ground to interpret
the provisions contained in the other Act.
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110. To understand the meaning of Section 11(17) of the
Act, it is also necessary to analyse various provisions of the Rent Act.
Section 11 (1) provides that a tenant shall be evicted only in accordance
with the provisions of the Rent Act. First proviso to Section 11(1)
exempts buildings belonging to State Government from the application
of the provisions of the Rent Act. Second proviso to Section 11(1)
takes away the jurisdiction of the Rent Control Court to confer
permanency in the leasing arrangements. Section 11(2) deals with
eviction of a tenant on the ground of arrears of rent. Section 11(2)(b)
confers power on the Rent Control Court to pass an order directing the
tenant to put the landlord in possession if the tenant wilfully fails to pay
the rent. Section 11(2)(c) provides that such an order can be vacated
provided the tenants deposits the amount specified in the Section.
Section 11(3) deals with the ground for eviction on the ground of bona
fide need. It provides that the landlord may apply to the Rent Control
Court for a direction to the tenant to put the landlord in possession of the
building if he bona fide needs the building for his own occupation or for
occupation of any member of his family dependent on him. First proviso
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to Section 11(3) provides 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. Second proviso to section 11(3)
stipulates that even if the landlord proves the bona fide need, the Rent
Control Court shall not pass an order of eviction, if the tenant proves that
he is depending for his livelihood mainly on the income derived from
any trade or business carried on in the building taken on rent and no
other suitable building for such trade or business is available in the
locality. The third proviso deals with transfer inter vivos. It provides
that no landlord shall be entitled to approach the Rent Control Court
until the expiry of one year from the date of instrument. Fourth proviso
deals with the transferee of a landlord after passing of the order. It
provides that if the landlord transfers or assigns his right in respect of a
building on which he had already obtained an order of eviction, the
transferee is not entitled to be put in possession unless he proves his
bona fide need. Section 11(4)(i) of the Rent Act deals with the ground
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for eviction on sub-letting. Proviso to sub-section (i) of Section 11(4)
states that before initiating action under sub-section 11(4)(i), notice
intimating contravention of the condition of the lease should be given to
the tenant and he should be given 30 days time to terminate the sub-
lease. There is an explanation to that sub-section by which the partition
of a joint family property and dissolution of a firm etc are dealt with.
Section 11(4)(ii) of the Act confers right on the landlord to evict the
tenant if he uses the building in such a manner as to destroy or reduce its
value or utility materially and permanently . Section 11(4)(iii) deals
with the grounds for eviction of a tenant who has already in his
possession a building or who subsequently acquires possession or puts
up a building. Section 11(4)(iv) of the Rent Act deals with eviction on
the ground of re-construction. That sub-section contains three provisos.
First proviso casts a duty on the landlord to reconstruct the building
within a time frame. Second proviso confers power on the court to issue
necessary directions regarding re-construction. Third proviso deals with
the option of a tenant to have the reconstructed building allotted to him.
Section 11(4)(v) confers a right on the landlord to evict a tenant who
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ceases to occupy the building for six months without reasonable cause.
Sub-section (5) deals with the right of a landlord to evict the tenant for
renovation of the building. Sub-section (6) deals with the liability of the
tenant to pay enhanced rent after renovation . Sub-section (7) provides
that if the landlord of a building is a religious, charitable, educational or
other public institution, it may apply for eviction of a tenant. Sub-
section (8) deals with additional accommodation. Sub-section (9)
provides that if the lease is for a specified period, the landlord cannot
approach the Rent Control Court before the expiry of such period. A
reading of sub-section (10) shows that unless the need is bona fide,
direction cannot be given to the tenant to put the landlord in possession.
First proviso to sub-section (10) deals with the of additional
accommodation and the second proviso confers power on the Rent
Control Court to give reasonable time to the tenant to put the landlord in
possession. Sub-section (11) is very material for analysing the present
case. Sub-section 11(i) reads as follows:-
“(11) Notwithstanding anything contained
in sub-sections (1) to (10) no order for eviction
or for putting the landlord in possession shall be
passed,–
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(i) against any tenant who is engaged in any
employment or class of employment notified by
the Government as an essential service for the
purpose of this sub-section, unless the landlord is
himself engaged in any employment or class of
employment which has been so notified and the
landlord requires the building for his own
occupation; or
(ii)……………”.
111. Section 11(11)(i) provides that if the tenant is an
employee or class of employment notified by the Government for the
purpose of section (11)(i), he cannot be evicted for any of the grounds
mentioned in sub-sections (1) to (12). Section 11(11) (ii) provides that if
the building was let out for use as an educational institution recognised
by the Government or any authority empowered by them in that behalf,
the tenant of that building is not liable to vacate or surrender possession
so long as such recognition continues. It is to be noted that every
Government employee is not entitled to claim the benefit conferred
under that sub-section. He must be engaged in an employment notified
as an essential service for the purpose of section 11(11)(i). So unless
these three conditions are satisfied, the tenant is not entitled to resist an
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action for eviction under this sub-section. A reading of sub-section (11)
of Section 11 shows that this particular benefit can be claimed by a
tenant only so long as he continues in any employment or class of
employment notified by the Government as an essential service for the
purpose of this section. Sub-section (12) deals with the right of a tenant
to approach the Rent Control Court for restoration of possession of the
building from which he was evicted on the ground of bona fide
occupation. Sub-section (12) provides that if a landlord who obtained
possession of a building in pursuance of an order passed by sub-section
(3) does not occupy it within the prescribed time limit, the tenant can
approach the Rent Control Court for an order of restoration of
possession. Sub-section (13) provides that if the tenant fails to apply for
possession under sub-section (12) the competent authority shall have
the power to allot the building for the occupation of any of the officers
or persons specified in sub-section (3) of section 4. Proviso to that
section says that the provision in that sub-section will not be applicable
to buildings for which the monthly rent does not exceed fifteen rupees.
Sub-section (14) confers power on the Rent Control Court to direct the
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landlord to pay compensation. Sub-section (15) provides that even after
the dismissal of the petition filed by the landlord, the tenant shall
continue subject to the provisions of the Rent Act and the landlord can
evict the tenant only on establishing one or more of the grounds
mentioned in sub-sections (2) to (8).
112. A reading of sub-section (17) shows that it is an
exception to Section 11(3). The primary and foremost task of
interpreting a statute is to ascertain the intention of the legislature, actual
or imputed. The court must then strive to so interpret the statute as to
promote and advance the object and purpose of the Act. In V.F. &
G.Insurance Co. v. M/s. Fraser and Ross (A.I.R.1960 S.C. 971) the
Supreme Court has held as follows:-
“It is well settled that all statutory
definitions or abbreviations must be read subject
to the qualification variously expressed in the
definition clauses which created them and it may
be that even where the definition is exhaustive
inasmuch as the word defined is said to mean a
certain thing, it is possible for the word to have a
somewhat different meaning in different sections
of the Act depending upon the subject or the
context. That is why all definitions in statutes
generally begin with the qualifying words
namely, unless there is anything repugnant in the
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subject or context. In view of this qualification,
the Court has not only to look at the words but
also to look at the context, the collocation and
the object of such words relating to such matter
and interpret the meaning intended to be
conveyed by the use of the words under the
circumstances.”
In M/s.Girdhari Lal & Sons v. Balbirnath (A.I.R. 1986 S.C.1499) the
Apex Court held as follows:-
“The primary and foremost task of a court
in interpreting a statute is to ascertain the
intention of the legislature, actual or imputed.
Having ascertained the intention, the Court must
then strive to so interpret the statue as to promote
and advance the object and purpose of the
enactment. For this purpose, where necessary the
court may even depart from the rule that plain
words should be interpreted according to their
plain meaning. There need be no meek and mute
submission to the plainness of the language.”
In Imad Ali v. Keshav Chand [(2003)4 SCC 635] the Supreme Court
held that the Rent Act is not only enacted for the benefit of the tenant
but also for the benefit of the landlord and therefore the provisions of the
Act have to be harmoniously interpreted. It was held that inheritance
or assignment does not confer any better title than his predecessor.
113. Learned counsel appearing for the petitioners
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strenuously argued that the expression ‘tenant’ used in Section 11(7)
must not be given a restricted meaning than the one ascribed to the
expression in the definition of the said expression under Section 2(6) of
the Rent Act. It is argued that it is for the Legislature either to confer or
take away the power of a particular class of persons and in this case, the
Legislature has not thought it fit to curtail the right available to the legal
heir of a tenant. It is argued that by restricting the scope of the right of a
legal heir of a tenant, the court is usurping on the legislative power.
Learned counsel for the petitioners relied on a decision reported in
Damadilal v. Parashram (A.I.R.1976 S.C. 2229) in which it was held that
there is no distinction between a contractual tenant and a statutory
tenant. In that case, the Supreme Court was considering whether a
statutory tenant had heritable interest in the tenancy arrangement. It
was held that there is absolutely no distinction between a contractual
tenant and a statutory tenant and whatever rights available to a
contractual tenant are available to a statutory tenant also. A reading of
the definition of the word ‘tenant’ in Section 2(6) of the Rent Act shows
that tenant includes statutory tenant also. So the principle laid down in
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Damadilal’s Case (supra) can have no application to the facts of this
case.
114. Learned counsel relied on a decision of the
Constitution Bench reported in Gain Devi v. Jeevan Kumar (A.I.R. 1985
S.C.796) in which the Supreme Court has considered whether there is
any distinction between a statutory tenant and a contractual tenant under
the provisions of Delhi Rent Control Act. It is held that a a tenant
even after termination of the tenancy continues to to have an estate or
interest in the tenanted premises and the tenancy rights both in respect of
residential premises and commercial premises are heritable. It is held
that the heirs of a deceased statutory tenant are also entitled to the same
protection available to a contractual tenant. The principle laid down in
that decision can have no application to the facts of this case.
115. In Gantusa H.Baddi v. Meerabai G.Pai [(2000) 4
S.C.C.586], the Karnataka High Court took the view that a tenancy right
in respect of a non-residential premises under the Karnataka Rent Act is
not heritable. The Supreme Court after interpreting the various
provisions of the Act held that in the absence of any contrary provisions
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in the Act, it must be held that the tenancy in respect of a non-residential
premises is also heritable. That decision also can have no application
to the facts of the case.
116. A reading of the various decisions referred to above
and relied on by the learned counsel for the revision petitioner shows
that those decisions are not rendered after considering a provision
similar to Section 11(17) of the Kerala Rent Control Act but considering
the meaning of the word `tenant’ under the Rent Control Acts of
Madhya Pradesh, Delhi and Karnataka. Counsel for the petitioners has
no case that any of those Acts contains a provision similar to that of
Section 11(17) of the Rent Act. The Apex Court was not called upon to
consider a similar provision. So the decisions referred to by counsel for
the petitioners are not helpful in deciding the issue raised in the case.
117. Learned counsel appearing for the petitioners refers
also to a decision reported in George Peter v. Sali (I.L.R. 1999(1)
Kerala 529). A Division Bench of this Court held that by virtue of the
inclusive definition of the tenant, the legal representatives of a deceased
tenant have got all the rights a tenant has including the right to move
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the Rent Control Court for an order directing that they shall be restored
to possession of the building under Section 11(12) of the Rent Act.
The correctness or otherwise of that decision need not be considered in
this case. A reading of Section 11(12) of the Rent Act shows that the
tenant has got a right to seek restoration of possession. Sub-section
(13) shows that if the tenant fails to seek restoration, the competent
authority can allot the building to the officers mentioned in that sub-
section. So the intention of the Legislature is very clear. If a landlord
evicts a tenant on the ground of bona fide own occupation and if he
fails to occupy the same, the building can be allotted to other tenants.
The principle laid in George Peter’s Case is also of no help to the
petitioners in this case.
118. Another decision relied is Viswanathan v. Abdul
Hameed (2000(3) K.L.T.712). In this case, a Division Bench of this
Court held that in order to attract the provisions of Section 11(17) of
the Rent Act, what is needed is only continuous occupation as a tenant.
It is true that in that case, Division Bench held that legal representatives
of the tenant who was in occupation of the building from 14-10-1933
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till his death were not liable to be evicted on the ground available under
Section 11(3) of the Rent Act. Whether the benefit conferred on a tenant
under Section 11(17) was a privilege or a right was not raised and
considered in that case. The Bench proceeded as if it is admitted that it
is a right which could be inherited by the legal heirs also. The
principle laid down in Viswanathan’s Case (supra) was considered by the
Full Bench in Narayanan’s Case. But the Full Bench did not follow the
principle laid down in that decision. It may also be noted that in
Viswanathan’s Case (supra) what the Bench mainly dealt with was the
requirement of continuous occupation.
119. Learned counsel also relied on a decision reported in
Raghavan v. Valsaraj (2004(3) K.L.T. 134) where a Division Bench of
this Court had considered whether the execution of a fresh lease deed
between the landlord and the tenant after 1-4-1940 will extinguish or
disrupt the tenancy. It was held that it will not extinguish or disrupt the
tenancy. The question whether the benefit conferred on a tenant under
Section 11(17) of the Rent Act is a right which is heritable by the heirs
or a privilege which will come to an end on account of the death of a
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tenant who has been in continuous occupation of the building from 1-4-
1940 was not raised and considered by the Division Bench. So the
principle laid down in Raghavan’s Case is also of no help to the
petitioners.
120. Learned counsel for the petitioners also relied on a
decision reported in Karthiayani v. Anandan (2004(2) K.L.T.575),
wherein a Division Bench of this Court held that a legatee under a
testamentary disposition cannot claim the status of a statutory tenant and
resist the claim for eviction unless the legatees are natural heirs. It was
held that the tenant includes the heir or heirs of a deceased tenant but
not a legatee under a will. It was further held that the word heir has to be
decided in accordance with the personal law of the tenant and hence a
legatee will not come within the definition of Section 2(6)(i) of the Rent
Act. The principle laid down in that decision also can have no
application to the facts of this case.
121. A reading of Section 11(17) of the Rent Act shows that
to resist an action for eviction with the aid of provision of this sub-
section the tenant must prove three facts: (i) that he came into
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occupation of the building prior to 1-4-1940; (ii) that occupation from
1-4-1940 is as a tenant and (iii) that he has been in continuous
occupation of the building from that date. So unless the tenant
establishes that he started his occupation of the building as a tenant on
1-4-1940, he will not get that benefit even if it is proved that he came
into occupation of the building prior to 1-4-1940.
122. The words ‘occupation’ and `possession’ are not
synonymous. In Muhammed v. Abdul Rahiman (1983 K.L.T.874) a
learned Single Judge of this Court held that occupation and possession
are not synonymous terms. One may possess land or building without
occupying the same. In Mathai Antony v. Abraham (2004(3)
K.L.T.169) also a Division Bench of this Court considered the
difference between occupation and possession. It was held that the
word “possession” means holding of such possession. Animus
possidendi, means, the intention to exclude other persons. The word
“occupy” has to be given a meaning so as to hold that the tenant is
actually using the premises and not mere physical presence or
possession. In Ram Dass v. Davinder [(2004) 3 SCC 684] the Supreme
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Court has held that in common parlance the words ‘possession’ and
‘occupation’ may be used interchangeably but in law “possession”
amounts to holding the property as an owner, while “occupy” is to keep
possession by being present in it. In the case at hand it is admitted that
from 1973 till 1978 the widow of A.M.Velayudhan alone was in
occupation. It is also admitted that from the year 1978 4th respondent
alone is in occupation. The original tenant had left widow and 7
children. Can it be said that occupation of the building by one among
them is occupation of all the heirs? Respondents 1 to 3 and 5 to 7 may
have possession of the building but they are not in occupation of the
same. In H.C.Pandy v. G.C.Paul (A.I.R.1989 S.C. 1470) it was held
that legal heirs of original tenant succeed to tenancy as joint tenants. It
is the single tenancy which devolves on the heirs.
123. A discussion of the various provisions of Section 11 of
the Rent Act shows that it deals with rights as well as privileges. A Full
Bench of this Court has considered the meaning of the words “rights”
and “privileges” in Bhaskaran v. Additional Secretary (1987(2)
K.L.T.903). It was held as follows:-
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“Where there is a right, there is a duty.
Where it is only a privilege, it is only liberty
without any corresponding duty. Privilege
provides an opportunity to choose among
alternatives. Privilege can be the dispensation
of a bounty, a conferment of a personal benefit
or advantage, a sanction of immunity or the grant
of an exemption. Privilege is thus essentially
discretionary. It may or may not be granted.
Privilege has thus no compulsive element and is
thus not judicially enforceable.”
124. A reading of the provisions of the Rent Act will show
that it is not meant to confer fixity or permanency on tenancy
arrangement. It only intended to regulate the leasing of the buildings
and to control the rent and to protect the tenant from unreasonable
eviction. Section 11(11) of the Rent Act will show that in certain cases,
the Legislature has intended to give a benefit or privilege to a class of
employees covered by the said section. Viewed from that context, the
only inference possible is by introducing section 11(17) the Legislature
wanted to confer a privilege on a tenant who came into occupation of a
building from eviction provided he is in continuous occupation from 1st
April 1940. That can only be a personal right. The privilege conferred
to such a tenant cannot be equated to a right which could be inherited.
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125. In O.P.No.1045 of 1962, a learned Single Judge of
this Court had considered the scope and ambit of Section 11(17) of 1959
Act. It was held that it is a benefit given to a tenant who was inducted
into possession prior to 1-4-1940 and continued to be in possession on
the date of proceedings for eviction. It was held as follows:-
“The Section that defines the term “tenant”
is irrelevant for construing the scope of section
11(17). All that the definition in section 2(6) says
is that the surviving spouse, any son or daughter
of a deceased tenant who had been living with the
tenant in the building as a member of the tenant’s
family, shall be deemed to be a tenant. I am
unable to understand how this definition either
helps or is against the landlord. It appears to me
that in cases where a tenant is not able to prove
that he has been in continuous occupation of a
building from 1st April, 1940, sub-section (17) of
Section 11 would have no application.”
The principle laid down in O.P.No.1045 of 1962 was approved and
relied on by a Division Bench in an unreported decision in Sarojini v.
Safia (C.R.P.Nos. 2107 and 2108 of 1992). The Bench noted that the
provisions of Section 11(7) in 1959 Act and present Act are the same
and held as follows:-
“….We are of the view that the benefit of the
protection under S.11(17) is available only to the tenant
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who was inducted into possession prior to the date and
continued to be in possession on the date of
proceedings for eviction and his legal representatives,
who came into the category of tenants by virtue of the
inclusive definition in S.2(6) of the Act cannot claim
the protection. In the instant case, the present
occupants admittedly are the legal representatives of
deceased Raghavan the original tenant and they came
into possession after his death. They therefore cannot
claim the benefit of S.11(17)”.
126. In Prasanna v. Haris [2005(2)K.L.T.365] another
Division Bench of this Court also considered the scope of Sections 2 (6)
and 11(17) of the Rent Act. It was held that the word tenant includes
the heirs of a deceased tenant. It was held as follows:-
“The definition of `tenant’ in the Kerala
Act makes no room for doubt in this regard and
the tenant and heirs of the statutory tenant can
also claim all the benefits available to the original
tenant. ”
Regarding the protection claimed under Section 11(17) of the Rent Act
it was held as follows:-
“For getting the benefit under S.11(17), one has
to be in possession of the building before 1940 as a
tenant.
. ……. . . . . .. . . . . . . . . . .
Further, no documentary or admissible evidence was
adduced by the tenant to show that even the original
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tenant was in continuous occupation of the building
before 1940. Production of a calendar, without any
details cannot establish that he was in continuous
occupation of the building from a date anterior to 1940
till the date of the petition.”
It was also held that the protection under section 11(17) of the Rent Act
can be claimed only by a tenant who was in occupation on or prior to
1-4-1940 and cannot be claimed by his heir who succeeds the original
tenant after 1940 as it was a personal right of the tenant who was in
occupation of the building.
127. A reading of the various provisions of the Act shows
that a tenant includes a contractual tenant and a statutory tenant . The
heirs of a statutory tenant are also entitled to inherit all rights of the
tenant. But to claim protection under Section 11(17) of the Rent Act, it
must be shown that the tenant came into occupation of the building as a
tenant prior to 1940 and he has been in continuous occupation since
then. If the tenancy started long prior to 1940 and if the original tenant
died prior to 1940, his heirs who came into occupation of the building
prior to 1940 are also entitled to claim protection provided they satisfy
the other requirements of the sub – section. There is no question of
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giving any restricted meaning to the word `tenant’. If the person
occupied a rented building as a tenant as defined in the Rent Act prior to
the cut off date and he has been in continuous occupation of the same, he
is entitled to claim privilege conferred on him under Section 11(17) of
the Rent Act. But the protection provided under Section 11(17) is a
personal privilege available to the tenant who came into occupation of
the building on 1-4-1940 and has been in continuous occupation of the
same.
128. The next question to be considered is whether there is
any difference between the death of the tenant prior to the
commencement of the Rent Act and after the commencement of the Act.
The question of inheritance is not decided in accordance with the
provisions of Rent Act. The Rent Act does not create any new rule
regarding succession of the estate of the deceased tenant. It is governed
by the provisions of the Transfer of Property Act and by the personal law
applicable to parties. If on the date of death of a tenant, he had a right
or estate in the tenancy, that right will be inherited by his heirs
irrespective of the date of death. Whether the tenant dies before or
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after 1965 will not make any difference. But if it is a personal
privilege, it will come to an end by the death of a person who was in
occupation as a tenant from 1-4-1940. In Narayanan’s Case, the Full
Bench has considered the issue and held that the benefit conferred on a
tenant under Section 11(17) of the Rent Act is a personal right or benefit
conferred on a tenant and not a right. If the tenant who came into
occupation prior to 1940 dies after that date his heirs will not inherit the
benefits conferred on the deceased tenant under Section 11(17) of the
Rent Act. The principle laid down in Narayanan’s Case (supra) does not
suffer from any infirmity which warrants re-consideration. The
principle laid down in Narayanan’s Case does not require any
reconsideration.
129. The question referred is answered as above and case
is sent back to the Bench which referred to decide the rest of the issues
on facts in accordance with law.
Sd/-
K.Padmanabhan Nair,
(Judge)
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Order of the Court
130. In view of the majority opinion, the Full Bench decision
in Narayanan v. Shalima, 2003 (2) KLT 317, lays down the correct law
and would need only to be confirmed. The question referred is answered
as above and the case is sent back to the Bench which referred the
matter, to decide the rest of the issue on facts in accordance with law.
Sd/-
V.K.Bali,
Chief Justice.
Sd/-
K.A. Abdul Gafoor,
Judge.
Sd/-
Kurian Joseph,
Judge.
Sd/-
K. Balakrishnan Nair,
Judge.
Sd/-
K. Padmanabhan Nair,
Judge.
DK.
(True copy)