{"id":199713,"date":"2007-02-09T00:00:00","date_gmt":"2007-02-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/a-m-prabhakaran-vs-chithappa-sulaikabi-on-9-february-2007"},"modified":"2016-12-19T12:39:46","modified_gmt":"2016-12-19T07:09:46","slug":"a-m-prabhakaran-vs-chithappa-sulaikabi-on-9-february-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/a-m-prabhakaran-vs-chithappa-sulaikabi-on-9-february-2007","title":{"rendered":"A.M. Prabhakaran vs Chithappa Sulaikabi on 9 February, 2007"},"content":{"rendered":"
Kerala High Court<\/div>\n
A.M. Prabhakaran vs Chithappa Sulaikabi on 9 February, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRP No. 2012 of 2001(M)\n\n\n\n1. A.M. PRABHAKARAN\n                      ...  Petitioner\n\n                        Vs\n\n1. CHITHAPPA SULAIKABI\n                       ...       Respondent\n\n                For Petitioner  :SRI.S.V.BALAKRISHNA IYER (SR.)\n\n                For Respondent  :SRI.A.P.CHANDRASEKHARAN (SR.)\n\nThe Hon'ble MR. Justice K.A.ABDUL GAFOOR\nThe Hon'ble MR. Justice ANTONY DOMINIC\n\n Dated :09\/02\/2007\n\n O R D E R\n                      K.A.ABDUL GAFOOR &\n\n                       ANTONY DOMINIC, JJ.\n\n                -------------------------\n\n                       C.R.P.No.2012  of  2001\n\n                -------------------------\n\n                 Dated this the 9th  day of February, 2007.\n\n\n\n                              O R D E R\n<\/pre>\n
Abdul Gafoor, J.\n<\/p>\n<\/p>\n
          This   revision   is   by   the   tenant   resisting   orders   of<\/p>\n
eviction   on   the   ground   available   under   Section   11(3)   of   the<\/p>\n
Kerala Buildings (Lease and Rent Control) Act [Act 2 of 1965]<\/p>\n
{hereinafter referred to as ‘the Act’}.\n<\/p>\n<\/p>\n
          2.     The   landlady   required   the   building   bona   fide   for<\/p>\n
the occupation of her son.   This was contested on the ground<\/p>\n
that   there   was   any   such   bona   fide   as   the   said   son   was<\/p>\n
employed   abroad.   But,   it   has   come   out   in   evidence   that   the<\/p>\n
son of the landlady had returned to his native place.   In such<\/p>\n
circumstances, the concurrent finding of bona fide cannot, any<\/p>\n
more, be resisted on that basis.  The further contention of the<\/p>\n
tenant was that he was entitled to the protection of Section 11<\/p>\n
(17)  of  the  Act.    The  said Section  did not  permit  eviction  on<\/p>\n
the ground of bona fides in case the tenant was occupying ‘as<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 2 ::\n<\/p>\n
a tenant’ prior to 1.4.1940 onwards.   There was dispute as to<\/p>\n
whether   the   occupation   continued   prior   to   1.4.1940.     But,<\/p>\n
there was doubt as to whether the protection available under<\/p>\n
Section   11(17)   would   be   applicable   to   the   legal   heirs   of   the<\/p>\n
original tenant, who continued occupation from a date earlier<\/p>\n
than 1.4.1940.  This aspect was concluded by the Full Bench in<\/p>\n
Narayanan v. Shalina {2003(2) K.L.T. 317}.   But the Full<\/p>\n
Bench,   which   considered   this   case,     doubted   the   decision   in<\/p>\n
that   case.     Accordingly,   it   was   referred   to   a   larger   bench<\/p>\n
consisting of 5 Judges.   It has been held by the larger bench<\/p>\n
per   majority   that   the   benefit   available   under   Section   11(17)<\/p>\n
will   not   be   available   to   the   heirs   of   the   original   tenant,   who<\/p>\n
had been in occupation since a date earlier than 1.4.1940.  In<\/p>\n
such circumstances, even if the contention of the tenant that<\/p>\n
the tenancy commenced earlier than the said date is accepted,<\/p>\n
he cannot get the protection available under Section 11(17) of<\/p>\n
the   Act.     Consequently,   the   revision   has   to   be   dismissed<\/p>\n
confirming the findings of the authorities below.  We do so.<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 3 ::\n<\/p>\n
                  Anyhow, the tenant is granted three months’ time to<\/p>\n
surrender   vacant   possession   of   the   building,   subject   to<\/p>\n
payment of arrears of rent, if any.\n<\/p>\n<\/p>\n
                                                                            Sd\/-\n<\/p>\n
                                                         (K.A.ABDUL GAFOOR)<\/p>\n
                                                                    JUDGE<\/p>\n
                                                                           Sd\/-\n<\/p>\n
                                      (ANTONY DOMINIC)<\/p>\n
                                                                    JUDGE<\/p>\n
sk\/<\/p>\n
                      \/\/true copy\/\/<\/p>\n
          IN THE HIGH COURT OF KERALA AT ERNAKULAM<\/p>\n
                                       PRESENT:\n<\/p>\n
\n         THE HONOURABLE THE CHIEF JUSTICE MR. V.K.BALI,<\/p>\n
         THE HONOURABLE MR.JUSTICE K.A. ABDUL GAFOOR,<\/p>\n
           THE HONOURABLE MR. JUSTICE KURIAN JOSEPH,<\/p>\n
        THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR,<\/p>\n
                                              &<\/p>\n
        THE HONOURABLE MR. JUSTICE K. PADMANABHAN NAIR.<\/p>\n
                           C.R.P.No.2012 of 2001 – E<\/p>\n
        R.C.A. No.218 of 1998 of Rent Control Appellate Authority, (Dist. Judge,<\/p>\n
                                         Kozhikode.\n<\/p>\n
             R.C.P. No.53 of 1997 of Munsiff & Rent Controller, Kozhikode.<\/p>\n
PETITIONERS in C.R.P.\/Appellants in R.C.A.\/Respondents in R.C.P.:<\/p>\n
  1. A.M. PRABHAKARAN, S\/o.A.M. VELAYUDHAN, ADHIKARI THARAMMAL,<\/p>\n
          POST ARIYALLUR, MALAPPURAM DISTRICT.\n<\/p>\n<\/p>\n
    2. A.V. SAVITHRI, D\/o.  -DO-  in  -DO- -DO-.\n<\/p>\n<\/p>\n
    3.  A.M. SAROJOINI,  D\/o.  -DO-  in  -DO- -DO-.\n<\/p>\n<\/p>\n
    4.  A.M. BALACHANDRAN,  S\/o.  -DO-  in  -DO- -DO-.<\/p>\n
    5.  A.M. SREEDEVI,   D\/o.  -DO-  in  -DO- -DO-.\n<\/p>\n<\/p>\n
    6.  A.M. SANTHA,   D\/o.  -DO-  in  -DO- -DO-.\n<\/p>\n<\/p>\n
    7.  A.M.  RADHA,   D\/o.  -DO-  in  -DO- -DO-.\n<\/p>\n
\n    BY Advs. M\/s. S.V. BALAKRISHNA IYER (Sr.) &  P.B. KRISHNAN.<\/p>\n
RESPONDENT in C.R.P.\/Respondent in R.C.A.\/Plaintiff  in R.C.P.:<\/p>\n
          CHITHAPPA SULAIKABI, D\/o.AHAMMED KUNHI AND W\/o.PULIKKAL –<\/p>\n
          SHAMSUDDEEN, PUTHIYANGADI AMSOM DESOM, KOZHIKODE TALUK<\/p>\n
          AND DISTRICT.<\/p>\n
\n          BY Advs.  M\/s. A.P.CHANDRASEKHARAN (Sr.),  PRABHA R. MENON,<\/p>\n
                 PUSHPA RAJAN KODOTH, M. KRISHNA KUMAR &<\/p>\n
                 T. SETHUMADHAVAN.<\/p><\/blockquote>\n
          THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON<\/p>\n
11.01.2007, THE COURT ON 23.1.2007 PASSED THE FOLLOWING:<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 5 ::\n<\/p>\n
                                                   V.K. Bali, C.J.,<\/p>\n
                                K.A. Abdul Gafoor,   Kurian Joseph,<\/p>\n
                    K. Balakrishnan Nair  & K. Padmanabhan Nair, JJ.<\/p>\n
                                    – – – – – – – – – – – – – – – – – – – – – – –\n<\/p>\n
                                          C.R.P.No. 2012 of 2001-E<\/p>\n
                                    – – – – – – – – – – – – – – – – – – – – — –\n<\/p>\n
                               Dated, this  23rd   day of January, 2007.\n<\/p>\n
                                                             Order<\/p>\n
V.K.Bali,C.J. (Concurring with K.Padmanabhan Nair, J.)<\/p>\n
                   I have gone through the illuminative concurring judgments of<\/p>\n
Abdul   Gafoor   and   Balakrishnan   Nair,   JJ.   as   also   the   concurring<\/p>\n
judgments   of   Kurian   Joseph   and   Padmanabhan   Nair,   JJ.   expressing<\/p>\n
however, a different view than the one expressed by Abdul Gafoor and<\/p>\n
Balakrishnan Nair, JJ.  The present may be one of the rarest of rare cases<\/p>\n
where   every   Honourable   Member   of   the   Bench     has   chosen   to   write,<\/p>\n
even though concurring with the other, his own judgment.  May be that<\/p>\n
the Honourable Member of the Bench concurring with the other wished<\/p>\n
to express the same view point in his own way.<\/p>\n
                      2.   I have given deep and anxious thought to both the views<\/p>\n
and after considering and reconsidering the whole issue, I have come to<\/p>\n
the   conclusion   that   the   view   expressed   by   Kurian   Joseph   and<\/p>\n
Padmanabhan Nair, JJ. appears to be correct.  With respect, thus, I would<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 6 ::\n<\/p>\n
differ with the view taken by Abdul Gafoor and Balakrishnan  Nair, JJ.<\/p>\n
Tenant means any person by whom or on whose account  rent is payable<\/p>\n
for   a   building   and   includes   the   heir   or   heirs   of   a   deceased   tenant   as<\/p>\n
would be made out from Section 2(6) of the Kerala Buildings (Lease and<\/p>\n
Rent Control) Act, 1965.  A tenancy is heritable, but the crucial question<\/p>\n
in the present case is as to whether a privilege conferred upon a tenant<\/p>\n
for his non-eviction  even in a case where the landlord  may require  the<\/p>\n
demised premises for his bona fide requirement is also heritable.   In my<\/p>\n
considered view, the plain language employed in Section  11(17)  of the<\/p>\n
Act would manifest that the privilege for non-eviction is of a tenant who<\/p>\n
has been in continuous occupation of a building from 1st April, 1940 as<\/p>\n
a   tenant.     Such   a   tenant   is   not   liable   to   be   evicted   for   bona   fide<\/p>\n
occupation of the landlord or of a member of the family dependent upon<\/p>\n
the   landlord.     The   tenancy   may   be   heritable,   but   a   special   privilege<\/p>\n
enjoyed by a tenant for his non-eviction is personal and such a personal<\/p>\n
privilege   is   not   and   cannot   be   heritable.     The   heir   of   a   tenant   may<\/p>\n
succeed   to   the   right     of   his   predecessor   but   he   cannot   succeed   to   the<\/p>\n
personal privilege  enjoyed by his predecessor conferred upon by virtue<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 7 ::\n<\/p>\n
of   he   being   in   possession   since   1st   of   April,   1940.       The   continuous<\/p>\n
possession  from 1st  April  1940  alone  clothes  a tenant  with  a privilege<\/p>\n
for non-eviction and such a continuous possession can be only peculiar<\/p>\n
to   a   tenant     actually   occupying   the   premises   and   no   occupation<\/p>\n
conferring such a privilege like non-eviction can be heritable.       In my<\/p>\n
considered view, it is not a case which may require a debate with regard<\/p>\n
to adding to or deleting from the existing provisions in the statute.  The<\/p>\n
statute  confers  a  privilege  to  a  tenant  by the  dint  of  his  occupying  the<\/p>\n
premises from 1st April, 1940 and it is that tenant only who would have<\/p>\n
the  privilege  of non-eviction.       If, perhaps,  this  Court was to interpret<\/p>\n
the   provisions   under   debate   or   discussion,   naturally,   all   principles   of<\/p>\n
interpretation   as   mentioned   in   the   concurring   judgments   of   Kurian<\/p>\n
Joseph and Padmanabhan   Nair,  JJ. would apply.  Surely, the right of a<\/p>\n
tenant   cannot   nurture   into   ownership   and   if   the   heir   of   a   tenant   is   to<\/p>\n
inherit   the   privilege   of   non-eviction   as   well,   it   would   be   a   virtual<\/p>\n
conferment   of   ownership   subject   to   payment   of   rent   which   may   be<\/p>\n
pittance, settled way back in 1940 or even before.  This conclusion needs<\/p>\n
to  be   arrived   at   by   pure   and   simple   interpretation   of  the   statute   in   the<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 8 ::\n<\/p>\n
context of objects and reasons of the Act of 1965 without in any manner,<\/p>\n
whatsoever,  adding to or deleting from the existing provision.<\/p>\n
                                                                                      Sd\/-\n<\/p>\n
                                                                            V.K.Bali,  Chief Justice.\n<\/p>\n
A
\n   bdul Gafoor, J.\n<\/p>\n
                                   (Dissenting with K.Padmanabhan Nair, J.)<\/p>\n
                      3.   ‘Eviction   of   tenants’   is   the   caption   of   Section<\/p>\n
11 of the Kerala Buildings (Lease and Rent Control) Act [Act 2<\/p>\n
of 1965] {hereinafter referred to as ‘the Act’}, which contains<\/p>\n
several sub-sections, provisos and explanations.<\/p>\n
                   4. The word ‘tenant’ appears in several of such sub-<\/p>\n
sections, provisos and explanations. That expression is defined<\/p>\n
in Section 2(6) of the Act as follows:\n<\/p>\n<\/p>\n
                  “tenant” means any person by whom or on whose account rent<\/p>\n
                  is payable for a building and includes –<\/p><\/blockquote>\n
                  (i) the heir or heirs of a deceased tenant, and<\/p>\n
                  (ii) a person continuing in possession after the termination of<\/p>\n
                  the   tenancy   in   his   favour,   but   does   not   include   a<\/p>\n
                  kudikidappukaran as defined in the Kerala Land Reforms Act,<\/p>\n
                  1963 (Kerala Act 1 of 1964), or a person to whom the collection<\/p>\n
                  of   rents   or   fees   in   a   public   market,   cart   stand   or   slaughter<\/p>\n
                  house   house   or   of   rents   for   shops   has   been   framed   out   or<\/p>\n
                  leased   by   a   Municipal   Council,   Municipal   Corporation,<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 9 ::\n<\/p>\n
                  Township Committee or Panchayat.”\n<\/p>\n<\/p>\n
                  5. Therefore, heir or heirs of a deceased-tenant also<\/p>\n
come within the statutory definition of tenant.<\/p>\n
                  6.   The   question   coming   up   for   consideration,   on<\/p>\n
reference by a Full Bench, is  whether heirs of a deceased-<\/p>\n
tenant are<\/p>\n
                  “entitled to claim the benefit of immunity from eviction under<\/p>\n
                  Section   11(17)   of   the   Act   as   an   inherited   right   in   a   Rent<\/p>\n
                  control Petition filed in the year 1997?”\n<\/p>\n<\/p>\n
                 7.   The building in question was let out, according to<\/p>\n
the landlady, on 17.11.1950 and according to the tenants on<\/p>\n
1.4.1936.   The   Full   Bench,   while   referring   the   case,   found<\/p>\n
prima   facie   sustenance   in   the   contention   of   the   tenants   that<\/p>\n
the   tenancy   commenced   on   1.4.1936.   The   tenant   so   put   in<\/p>\n
possession   was   one   Velayudhan,   the   father   of   the   revision<\/p>\n
petitioners   against   whom   the   respondent\/landlady   filed   a<\/p>\n
petition for eviction alleging that they were liable to be evicted<\/p>\n
on the ground of her bona fide need for own occupation.<\/p>\n
                 8.   The   petition   was  mainly   contested  by  the  revision<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 10 ::\n<\/p>\n
petitioners\/tenants   urging   immunity   from   eviction   available<\/p>\n
under   Section   11(17)   to   “a   tenant,   who   has   been   in<\/p>\n
continuous occupation of a building from 1.4.1940 as a<\/p>\n
tenant.”   The   immunity   provided   for   in   the   sub-section   is<\/p>\n
absolute in respect of tenancies other than for residence, but<\/p>\n
qualified   as   regards   the   tenancy   in   respect   of   residential<\/p>\n
building. The building in question is a non-residential building.<\/p>\n
Therefore,   if   the   revision   petitioners   are   found   to   be   in<\/p>\n
continuous   occupation   of   the   building   as   tenants   from<\/p>\n
1.4.1940,   necessarily,   the   benefit,   protection,   privilege   or<\/p>\n
immunity envisaged in sub-section (17) of Section 11 will be<\/p>\n
available   to   them.   Application   of   Section   11(17)   has   been<\/p>\n
earlier   dealt   with   by   a   Full   Bench   of   this   court   in   an   earlier<\/p>\n
case   reported   in  Narayanan   v.   Shalina   {2003(2)   K.L.T.<\/p>\n
317}.\n<\/p>\n<\/p>\n
                 9.   While   considering   the   contention   of   the   revision<\/p>\n
petitioners, a Division Bench noticed that several decisions of<\/p>\n
the   Supreme   Court   including   that   in  Gian   Devi   v.   Jeevan<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 11 ::\n<\/p>\n
Kumar  {AIR   1985   S.C.796}  have   not   been   placed   before<\/p>\n
that Full Bench, which held that the word ‘tenant’ appearing<\/p>\n
in   Section   11(17)   of   the   Act   should   have   been   given   a<\/p>\n
restricted meaning, as the privilege or benefit available under<\/p>\n
that   provision   was   personal   to   the   tenant   who   occupied   the<\/p>\n
building   from   1.4.1940   onwards.     Therefore,   the   matter   was<\/p>\n
placed before a Full Bench consisting of three Judges.<\/p>\n
                 10.   After   elaborately   discussing   the   ratio   in  Gian<\/p>\n
Devi’s   case,   that   Full   Bench   was   of   the   view   that   “in   the<\/p>\n
absence   of   restrictive   provision,   the   legal   heirs   of   the<\/p>\n
tenant   have,   at   least   after   the   commencement   of   the<\/p>\n
Act, a heritable  right  of  all  rights and privileges of  the<\/p>\n
deceased tenant”.  That Full Bench was also of the view that<\/p>\n
if   the   ratio   in  Narayanan’s  case   were   to   be   driven   to   its<\/p>\n
logical   conclusion,   “then   the   privilege   being   personal   to<\/p>\n
the   particular   tenant,   it   will   die   with   the   person<\/p>\n
regardless   of   the   date   of   death   of   the   said   tenant<\/p>\n
precluding   his   legal   heirs   from   contending   that   they<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 12 ::\n<\/p>\n
have inherited the estate to which the said privilege is<\/p>\n
also   attached”.     The   Bench   also   doubted   whether   “such   a<\/p>\n
consequence   has   been   envisaged   or   intended   by   the<\/p>\n
legislature”.       According  to   the   Bench,  these  are   “some  of<\/p>\n
the nuances of the question for which no answer seems<\/p>\n
to   be   provided   by   the   interpretation   placed   on  the<\/p>\n
provision by the Full Bench”.   Accordingly, that Full Bench<\/p>\n
consisting of three Judges felt it to be considered by a larger<\/p>\n
bench.  Therefore, this reference.\n<\/p>\n<\/p>\n
                 11. Of course, the case of the tenants revolves on the<\/p>\n
question whether they are entitled to the protection envisaged<\/p>\n
in   Section   11(17)   of   the   Act.     But   even   now   it   is   not<\/p>\n
conclusively found finally as to when the tenants commenced<\/p>\n
continuous   occupation   to   consider   whether,   they   will   come<\/p>\n
within the umbrella of Section 11(17).  There is also a debate<\/p>\n
as to whether the findings in an earlier proceedings act as res<\/p>\n
judicata   against   the   tenants   to   urge   the   contention   centered<\/p>\n
around   Section   11(17).     If   finding   on   any   of   these   points   is<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 13 ::\n<\/p>\n
rendered   against   them,   necessarily,   the   point   referred   does<\/p>\n
not arise at all. It is afraid, whether the decision by this Bench<\/p>\n
will become on a point not arising in the case.  Therefore, this<\/p>\n
exercise by a bench of five Judges ought to have been avoided<\/p>\n
awaiting   final   finding   on   the   said   points   by   a   bench   of   less<\/p>\n
number of Judges or even by decision by the lower tribunal, if<\/p>\n
remand   is   required,   as   opined   by   the   referring   Bench.<\/p>\n
Anyhow, the Bench proceeded to answer the reference.<\/p>\n
                 12.  The claim of the revision petitioners for protection<\/p>\n
of   Section   11(17)   is   resisted   contending   that,   the   benefit<\/p>\n
provided   in   that   provision   is   only   personal   to   the   incumbent<\/p>\n
who   was   in   occupation   of   the   building   on   1.4.1940   and<\/p>\n
continuously thereafter.   If heir\/heirs are brought in within its<\/p>\n
purview, it will result in permanent tenancy in favour of them.<\/p>\n
                 13. As pointed out at the threshold, Section 11 deals<\/p>\n
with eviction of tenants and ‘tenant’ is defined in Section 2(6)<\/p>\n
of the Act to include ‘heir or heirs of a deceased-tenant’.<\/p>\n
The   word   ‘tenant’   is   repeatedly   used,   apart   from   in   the<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 14 ::\n<\/p>\n
caption of the Section, in several of the sub-sections, provisos<\/p>\n
and   explanations   forming   part   of   Section   11   which   runs   into<\/p>\n
pages.     When   a   word   used   in   a   Statute   is   defined   in   the<\/p>\n
interpretative   Section,   unless   any   other   situation   or   context<\/p>\n
arises, that word appearing in several parts of the statute has<\/p>\n
to   be   ascribed   the   same   meaning;   and   a   different   meaning<\/p>\n
cannot be attributed to the same word specifically defined.<\/p>\n
                 14.       A   tenant   defending   a   petition   for   eviction   on<\/p>\n
various grounds urged in Section 11(2), in 11(3), in  different<\/p>\n
clauses of Section 11(4) etc., can be the heir or heirs of the<\/p>\n
person,  with whom the tenancy agreement was entered into.<\/p>\n
The tenant, who is defending eviction proceedings contending<\/p>\n
any of the protections or benefits envisaged in the provisos to<\/p>\n
Section 11(3) can also be such heir.  A person opting for space<\/p>\n
in the building after eviction on the ground of reconstruction of<\/p>\n
the  tenanted  premises  in  terms   of   the  2nd  proviso   to  Section<\/p>\n
11(4)(iv)   can   also   be   a   heir   of   the   person   who   has   been<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 15 ::\n<\/p>\n
evicted, if he is dead by that time.   Similarly, if the  landlord<\/p>\n
does not occupy the premises from which a  tenant has  been<\/p>\n
evicted on the ground of bona fide need within the prescribed<\/p>\n
period,   a   heir   of   a   deceased   tenant,   who   has   been   thus<\/p>\n
evicted,   can   also   seek   reoccupation   in   terms   of   Section   11<\/p>\n
(12). The  word ‘tenant’  employed in the provisions   covering<\/p>\n
these   different   situations   is   interpreted   in   the   same   way   as<\/p>\n
defined   in   section   2(6)   to   include   the   heirs   and   it   does   not<\/p>\n
admit a different shade of meaning.  In such circumstances, is<\/p>\n
it   justified   to   give   a   different   meaning   to   the   word   ‘tenant’<\/p>\n
employed   in   Sub-section   (17)   of   Section   11?   This   is   the<\/p>\n
question debated.\n<\/p>\n<\/p>\n
              15. The said provision reads as follows:\n<\/p>\n<\/p>\n
                    ‘Notwithstanding   anything   contained   in   this   section   a   tenant<\/p>\n
                    who has been in continuous occupation of a building from 1st<\/p>\n
                    April 1940 as a tenant shall not be liable to be evicted for bona<\/p>\n
                    fide   occupation   of   the   landlord   or   of   the   occupation   by   any<\/p>\n
                    member   of   his   family   dependent   on   him,   provided   that   a<\/p>\n
                    landlord of a residential building shall be entitled to evict such<\/p>\n
                    a tenant  of that   building  if  the  landlord  has   been   living  in  a<\/p>\n
                    place outside the city, town or village in which the building is<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 16 ::\n<\/p><\/blockquote>\n
\n
                    situated for a period of not less than five years before he makes<\/p>\n
                    an   application   to   the   Rent   Control   Court   for   being   put   in<\/p>\n
                    possession of the building and requires the building, bona fide<\/p>\n
                    for   his   own   permanent   residence   or   for   the   permanent<\/p>\n
                    residence of any member of his family or the landlord is in dire<\/p>\n
                    need of a place for residence and has none of his own.”<\/p><\/blockquote>\n
                  16. The word ‘tenant’ wherever used in this provision<\/p>\n
is not denoted by a definite article.   This provision contains a<\/p>\n
protection,   benefit   or   privilege   for   a   ‘tenant’   in   continuous<\/p>\n
occupation of a building from 1.4.1940 onwards.<\/p>\n
                  17.   Sub-section   (12)   of   Section   11   also   envisages<\/p>\n
another protection, benefit or privilege available to a tenant in<\/p>\n
the following words:\n<\/p>\n<\/p>\n
                    “Where   a   landlord   who   has   obtained   possession   of   a<\/p>\n
                    building in pursuance of an order sub-section (3), does not<\/p>\n
                    occupy it without reasonable cause within one month of the<\/p>\n
                    date   of   obtaining   possession,   of   having   so   occupied   it,<\/p>\n
                    vacates   it   without   reasonable   cause   within   six   months   of<\/p>\n
                    such date, the tenant who has been evicted may apply to the<\/p>\n
                    Rent Control Court for an order directing that he shall be<\/p>\n
                    restored to possession of the building, and the Court shall<\/p>\n
                    make   an   order   accordingly   notwithstanding   anything<\/p>\n
                    contained in Section 4.”\n<\/p><\/blockquote>\n
<\/blockquote>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 17 ::\n<\/p>\n<\/p>\n
                  18.   The word ‘tenant’ employed in this provision is<\/p>\n
with a definite article.  Even then, that privilege is available to<\/p>\n
the heir or heirs of the evicted person as well.  In other words,<\/p>\n
if a tenant has been evicted by a landlord urging the ground<\/p>\n
under  sub-section  (3)  of   Section   11  and  if  the  landlord  does<\/p>\n
not   occupy   the   building   without   reasonable   cause   within   a<\/p>\n
month from the date of obtaining possession of the building or<\/p>\n
after   occupying   it   vacates   it   within   six   months   without<\/p>\n
reasonable   cause,   the   evicted   tenant   is   enabled   to   seek   an<\/p>\n
order   from   the   Rent   Control   Court   to   restore   him   to<\/p>\n
possession.     This   benefit   available   to   the   evicted   tenant,   in<\/p>\n
case of his death can be claimed by his heir or heirs as well,<\/p>\n
going by the definition of the word  tenant  in Section 2(6) of<\/p>\n
the Act.      A Division Bench  of this court  also has  taken  that<\/p>\n
view   in   the   decision   reported   in  George   Peter   v.   T.K.Sali<\/a><\/p>\n
{ILR 1999(1)Kerala 529}.  In that case, a tenant who has<\/p>\n
been   ejected   out   on   the   ground   of   bona   fide   need   of   the<\/p>\n
landlord, having found that the latter did not make use of the<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 18 ::\n<\/p>\n
building   for   such   bona   fide   need,   invoked   Section   11(12).<\/p>\n
During the pendency of the petition so he filed, he died.   His<\/p>\n
heirs   sought   for   impleadment.   This   was   resisted   by   the<\/p>\n
landlord on the ground that “after the death of the original<\/p>\n
tenant,   his   legal   heirs   would   not   get   a   right   to   get<\/p>\n
themselves   impleaded   in   order   to   contest   the<\/p>\n
proceedings   as   the   right   given   by   the   statute   to   an<\/p>\n
evicted   tenant   is   a   right   personal   to   him”.     The   Rent<\/p>\n
Controller   as   well   as   the   appellate   authority   did   not   accept<\/p>\n
that objection raised by the landlord.  The matter was carried<\/p>\n
to   this   court,   in   revision   under   Section   20   of   the   Act.<\/p>\n
Considering the point, the Division Bench held that:<\/p>\n
               “It has to be remembered that even if the statutory tenant has no<\/p>\n
               estate or property in the demised premises, once the Act has created<\/p>\n
               a right in such a tenant in respect of the property by widening the<\/p>\n
               definition of the expression ‘tenant’ so as to include the heirs of a<\/p>\n
               deceased tenant, the latter will be entitled to claim all the rights of<\/p>\n
               the original tenant.”<\/p><\/blockquote>\n
                  19.     Section   11(13)   deals   with   a   situation   where   a<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 19 ::\n<\/p>\n
tenant   does   not   avail   of   the   privilege   or   benefit   in   terms   of<\/p>\n
Sub-section (12).  But that in no way restricts the meaning of<\/p>\n
the   word  tenant  employed   in   Section   11(12)   to   have   a<\/p>\n
different look on the dictum in George Peter’s case.<\/p>\n
                  20.   The   Full   Bench   in  Narayanan’s  case   while<\/p>\n
holding   that   “the   protection   under   S.11(17)   ….   must<\/p>\n
certainly   be   reckoned   as   a   personal   privilege   or<\/p>\n
protection available to the tenant actually in continuous<\/p>\n
occupation   from  the  relevant  date   1.4.1940   and  not  to<\/p>\n
his   successors”   did   not   advert   to   the   decision   in  George<\/p>\n
Peter’s  case (referred supra) nor to the position of a tenant<\/p>\n
exercising a similar benefit or privilege available in Section 11<\/p>\n
(12),   as   in   sub-section   (17),   to   ascribe   the   meaning   of   the<\/p>\n
word   ‘tenant’  appearing   in   both   the   provisions   conferring<\/p>\n
benefits\/privileges   on   the   tenant,   in   a   uniform   manner.     The<\/p>\n
meaning   of   the   word   ‘tenant’   appearing   in   sub-section   (12)<\/p>\n
and   sub-section   (17)   has   to   be   similarly   construed.     It   is   a<\/p>\n
well-established rule of interpretation that while interpreting a<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 20 ::\n<\/p>\n
particular   provision   of   a   statute,   courts   should   bear   in   mind<\/p>\n
the object and scheme of the entire Act. A particular provision<\/p>\n
of the Act cannot be considered or interpreted in isolation so<\/p>\n
as to give room for conflict inter se between the provisions of<\/p>\n
the same Act.\n<\/p>\n<\/p>\n
                  21.   At this juncture, one cannot be unmindful of the<\/p>\n
provisions in Section 11(11)(i) where, the same word ‘tenant’<\/p>\n
may have a different shade in its meaning.  The said provision<\/p>\n
reads:\n<\/p>\n<\/p>\n
                “Notwithstanding anything contained in sub-sections (1)<\/p>\n
                to (10) no order for eviction or for putting the landlord in<\/p>\n
                possession shall be passed, —<\/p><\/blockquote>\n
                (i) against any tenant who is engaged in any employment<\/p>\n
                or class of employment notified by the Government as an<\/p>\n
                essential   service   for   the   purpose   of   this   sub-section,<\/p>\n
                unless   the   landlord   is   himself   engaged   in   any<\/p>\n
                employment   or   class   of   employment   which   has   been   so<\/p>\n
                notified,   and   the   landlord   requires   the   building   for   his<\/p>\n
                own occupation; or<\/p>\n
                (ii) in respect of any building which has been let for use<\/p>\n
                as an educational institution, and is actually being  used<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 21 ::\n<\/p>\n
                as such, provided that the institution has been recognised<\/p>\n
                by the Government or any authority empowered by them<\/p>\n
                in this behalf, so long as such recognition continues.”<\/p>\n
                  22. This provision also contains certain limited benefit<\/p>\n
or protection to a tenant in its 1st  segment and in respect of<\/p>\n
the   use   of   the   building   let   out   in   its   second   segment.     The<\/p>\n
word   ‘tenant’   used   in   its   1st  segment   is   qualified   by   the<\/p>\n
expression   “who   is   engaged   in   employment   notified   by<\/p>\n
the   Government   as  an   essential   service   …”.     Therefore,<\/p>\n
the benefit or protection is only for the persons employed in a<\/p>\n
particular   manner.     It   rarely   happens   that   heir\/heirs   also<\/p>\n
become similarly employed to earn that protection. Therefore,<\/p>\n
the   context   clearly   spells   out   a   different   meaning   in<\/p>\n
consonance with the limited and specified benefit or protection<\/p>\n
envisaged in that sub-section.\n<\/p>\n<\/p>\n
                  23.   But   when   the   word   ‘tenant’   used   in   section   11<\/p>\n
(17)   is   qualified   with   the   expression   ‘who   has   been   in<\/p>\n
continuous   occupation’   that   takes   in   the   ‘tenant’,   who<\/p>\n
includes,   going   by   the   definition,   ‘the   heir   or   heirs   of   a<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 22 ::\n<\/p>\n
deceased   tenant’   also.     This   is   with   the   same   import   as<\/p>\n
contained in Section 11(12) dealt with in George Peter’s case<\/p>\n
referred   to   supra.   Because,   it   does   not   refer   to   quality   or<\/p>\n
employment of the tenant as in Section 11(11)(i).<\/p>\n
                  24.   The   explanation   to   section   11(17)   also   is   not<\/p>\n
capable   of   giving   any   different   connotation   to   the   word<\/p>\n
‘tenant’ employed in that sub section.  The explanation reads:<\/p>\n
               “In computing the period of continuous occupation from 1st  April,<\/p>\n
               1940,   the   period,   if   any,   during   which   the   landlord   was   residing<\/p>\n
               outside   the   city,   town   or   village   in   which   the   building   is   situated<\/p>\n
               shall be excluded.”<\/p><\/blockquote>\n
                  25. It is possible that even during the currency of a<\/p>\n
tenancy   a   tenant   may   not   physically   occupy   a   building   for<\/p>\n
some  time. In such circumstances, that  provision,  even if  he<\/p>\n
was in occupation  initially   from   1.4.1940,  may not  cloth  him<\/p>\n
with   the   benefit,   protection   or   privilege   available   in   terms<\/p>\n
thereof.   Because   he   will   not   be   in  continuous   occupation,<\/p>\n
though   a   tenant   continuously.   So   far   as   such   a   person   is<\/p>\n
concerned,  that period when he was not in real occupation of<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 23 ::\n<\/p>\n
the   building,   while  the   tenancy   subsisted,   will   be   excluded  if<\/p>\n
during that period  the landlord was residing outside  the city,<\/p>\n
town or village, where the building is situated.  This being the<\/p>\n
purpose   of   the   explanation,   it   does   not   in   any   way   give   a<\/p>\n
different shade of meaning to the word ‘tenant’ employed in<\/p>\n
Section 11(17) to that contained in the definition clause.<\/p>\n
                  26.   The   Full   Bench   in  Narayanan’s  case   was<\/p>\n
considering a case relating to tenancy commenced in 1919.  In<\/p>\n
that case, the person with whom the premises were originally<\/p>\n
entrusted     expired   in   the  year   1941.   His  heirs   continued  the<\/p>\n
occupation   after   his   death.   Thereafter,   they   formed   a<\/p>\n
partnership in  the  year  1951,  a  different entity;  and renewal<\/p>\n
lease deed was also executed.  Thus, the said case did have a<\/p>\n
different   fact   frame.     Whether   the   son   of   the   said   original<\/p>\n
tenant did fall within the definition of ‘tenant’ as available at<\/p>\n
the   time   of   death   of   the   original   tenant   is   also   doubtful.<\/p>\n
Anyhow, the subsequent partnership cannot be termed as the<\/p>\n
heir   of   the   deceased   tenant   to   attract   Section   11(17).<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 24 ::\n<\/p>\n
Whatever   that   be,   adverting   to   the   definition   as   presently<\/p>\n
appearing   in   the   statute,   the   import   of   Section   11(17)   was<\/p>\n
considered,   and   the   Full   Bench   was   of   the   view   that   this<\/p>\n
provision,   if   understood   in   that   manner   “would   virtually<\/p>\n
amount to a perpetual clog on the right of the landlord<\/p>\n
to claim eviction under section 11(3) from a tenant” and<\/p>\n
that   such   a   clog   or   fetter   has   to   be   understood   fairly   and<\/p>\n
reasonably without offending the provisions of the Constitution<\/p>\n
which   mandate   ‘freedom   from   inequality   and<\/p>\n
arbitrariness’.  According   to   the   Full   Bench  in  Narayanan’s<\/p>\n
case,   from   1.4.1940   to   the   enforcement   of   the   present   Act,<\/p>\n
there was a gap of 25 years.   But the section did not envisage<\/p>\n
such   protection   to   any   tenant   with   25   years   of   continuous<\/p>\n
occupation and it was an indication to suggest that “Section<\/p>\n
11(17)   confers   only   the   personal   privilege   and<\/p>\n
protection   to   the   tenants   who   were   in   possession   on<\/p>\n
1.4.1940   and   not   to   their   legal   heirs”.     That   Full   Bench<\/p>\n
was   also   of   the   view   that   extension   of   such   benefit   “would<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 25 ::\n<\/p>\n
amount   to   fetter   and   clog   in   perpetuity   against   the<\/p>\n
claim for eviction under Section 11(3)” and that “there is<\/p>\n
nothing   in   the   language   of   Section   11(17)   or   the<\/p>\n
scheme   of   the   Act   which   suggests   that   legislature<\/p>\n
wanted   to   place   such   an   unreasonable   fetter   on   the<\/p>\n
right of the landlords”.  The Full Bench considered the view<\/p>\n
taken   in                 Sarojini   &   ors.   v.   Safia   &   another<\/p>\n
{C.R.P.No.2107   &  2108\/92}  and  that   in  Viswanathan  v.<\/p>\n
Abdul   Hameed{2000(3)   K.L.T.   712}  and   approved   the<\/p>\n
ratio in the former and disagreed with the latter holding that<\/p>\n
extension of “the benefit of Section 11(17) to legal heirs<\/p>\n
of   the   tenant   cannot   be   accepted   as   laying   down   the<\/p>\n
correct law”.\n<\/p>\n<\/p>\n
                  27.             In         Sarojini’s                 case   (C.R.P.No.2107   &<\/p>\n
2108\/92), the court was of the firm view that:<\/p>\n
                 “We   are   not   persuaded   to   entertain   the   contention   of   the<\/p>\n
                 revision petitioner based on Section 11(17) ….”<\/p>\n
In   spite   of   that,   that   point   was   adverted   to   referring   to   a<\/p>\n
decision in O.P.No.1045\/62, wherein it has been held  that:<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 26 ::\n<\/p>\n
                  “in cases where a tenant is not able to prove that he has<\/p>\n
                  been in continuous occupation of building from 1st  April,<\/p>\n
                  1940,   Sub-Section   (17)   of   Section   11   would   have   no<\/p>\n
                  application.”\n<\/p>\n<\/p>\n
                   28. This finding was not after examination whether a<\/p>\n
heir   will   come   within   the   word   ‘tenant’,   in   extenso.<\/p>\n
Moreover, the definition available at that time was not as wide<\/p>\n
as that now in section 2(6) of the Act.  After adverting to the<\/p>\n
said   finding,   the   Bench   in  Sarojini’s  case   simply   compared<\/p>\n
the   present   Section   11(17)   and   that   in   the   1959   Act   as<\/p>\n
identical and concluded that:\n<\/p>\n<\/p>\n
                “We are of the view that the benefit of the protection under Sec.<\/p>\n
                11(17)   is   available   only   to   the   tenant   who   was   inducted   into<\/p>\n
                possession  prior to the date and continued  to be in  possession<\/p>\n
                on   the   date   of   proceedings   for   eviction   and   his   legal<\/p>\n
                representatives, who, came into the category of tenants by virtue<\/p>\n
                of  the  inclusive  definition  in Sec.2(6) of the  Act  cannot  claim<\/p>\n
                the protection”,<\/p>\n
again without examining the import of the definition of tenant<\/p>\n
contained in section 2(6) and the context of the word used in<\/p>\n
provisions   similar   and   dissimilar     to   Section   11(17).   At   the<\/p>\n
same   time,  Viswanathan’s  case   also   did   not   consider<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 27 ::\n<\/p>\n
application of Section 11(17) with reference to the meaning of<\/p>\n
the   word   ‘tenant’.     It   was   really   a   case   where   an   implied<\/p>\n
surrender   was   alleged   as   a   reason   to   resist   application   of<\/p>\n
Section   11(17).     Therefore,   these   two   cases   do   not   throw<\/p>\n
much light on the point.\n<\/p>\n<\/p>\n
                  29.   In   a   later   decision   reported   in  Prasannan   v.<\/p>\n
Haris<\/a>   {ILR   2005(2)   Kerala   373},    a   division   bench   has<\/p>\n
followed Narayanan’s case, to the effect that:<\/p>\n
               “protection under Section 11(17) can be claimed only by a tenant<\/p>\n
               who   was   in   possession   of   the   building   on   or   before   1940   and   it<\/p>\n
               cannot   be   claimed   by   his   legal   heir   who   succeeded   the   original<\/p>\n
               tenant   after   1940   as   it   is   a   personal   right.     It   was   concurrently<\/p>\n
               found   on   the   basis   of  evidence  that  even  the   original  tenant   was<\/p>\n
               not in possession of the building in 1940 and therefore, the tenant<\/p>\n
               is not entitled to the benefit of Section 11(17).<\/p><\/blockquote>\n
                  30.    But  the   passage  just  preceding  the  said  dictum<\/p>\n
will reveal that such an issue did not arise at all in that case.<\/p>\n
That passage reads:\n<\/p>\n<\/p>\n
               “It   has   come   out   in   evidence   that   in   1963   Bata   Shoe   Company<\/p>\n
               Limited   was   the   tenant   in   the   petition   schedule   building   and   the<\/p>\n
               original tenant came into possession only after 1963.  Further, no<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 28 ::\n<\/p><\/blockquote>\n
\n
               documentary or admissible evidence was adduced by the tenant to<\/p>\n
               show that even the original tenant was in continuous occupation of<\/p>\n
               the building before 1940.”<\/p><\/blockquote>\n
                  31.  There is also no useful discussion on the point in<\/p>\n
that case.  Moreover, the question posed in that case was:<\/p>\n
                  “Whether a legatee under the Will is a ‘heir’.”<\/p>\n
Legatee is not a heir and often a legatee excludes a heir from<\/p>\n
inheritance fully or partially.  A Will is required for a legatee to<\/p>\n
succeed as he is not always a heir or to succeed to the extent<\/p>\n
bequeathed.  On any count, Prasannan’s case is of no help to<\/p>\n
answer the issue.\n<\/p>\n<\/p>\n
                  32. Examination of the provisions in the statute which<\/p>\n
preceded the present Act will disclose that provision similar to<\/p>\n
section 11(17) was already on statute book even at that time.<\/p>\n
Therefore,   the   view   in  Narayanan’s    case   that   protection   is<\/p>\n
not given to the tenants who are in continuous occupation for<\/p>\n
a period of 25 years or more after the Act came into force is<\/p>\n
indicative   to   suggest   a   different   meaning   to   Section   11(17),<\/p>\n
cannot   be   stated   to   be   a   logical   conclusion.     The  purpose   of<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 29 ::\n<\/p>\n
the provision is not to confer a benefit, privilege or protection<\/p>\n
to tenants who complete a particular period of tenancy, but to<\/p>\n
a   class   of   tenants   with   reference   to   a   definite   date   of<\/p>\n
commencement   of   continuous   occupation   of   the   tenanted<\/p>\n
premises.   Such a classification with such reasonable nexus is<\/p>\n
with the object of conferring a benefit, privilege or protection<\/p>\n
to a definite class of tenants.  Such a provision remaining on<\/p>\n
statute book unquestionably for a very long period of decades<\/p>\n
together cannot be termed to offend the ‘right to equality’.<\/p>\n
                  33.   There   are   other   Acts   like   Delhi   Rent   Act   which<\/p>\n
created a complete clog against eviction from building let out<\/p>\n
for commercial purpose. Section 11(17) is not a complete clog<\/p>\n
on eviction. On other grounds and in cases of non-occupation<\/p>\n
even   on   the   ground   under   Section   11(3),   eviction   can   be<\/p>\n
sought for. Moreover, even if a clog, legislature is competent<\/p>\n
enough   to   legislate   that   clog.   There   is   no   challenge   against<\/p>\n
that provision.  So the limited clog under Section 11(17) is not<\/p>\n
a reason to attribute a different meaning to the word ‘tenant’.<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 30 ::\n<\/p>\n<\/p>\n
                  34.   When   the   legislature   has   defined   the   word<\/p>\n
‘tenant’   and   when   no   restrictive   meaning,   by   indication   or<\/p>\n
from context, can be ascribed  to that expression appearing in<\/p>\n
sub-section   (17)   of   Section   11,   as   is   manifest   in   Section   11<\/p>\n
(11)(i), there is no reason at all to ascribe a different meaning<\/p>\n
to the word ‘tenant’, to that contained in the definition clause.<\/p>\n
                  35.   It   is   now   trite   that   tenancy   creates   an   interest;<\/p>\n
and that right, though limited, is heritable.<\/p>\n
                  36. As held in  Damadilal v. Parashram,<\/a> (1976) 4<\/p>\n
SCC 855:\n<\/p>\n
                 “Tenancy has its origin in contract. There is no dispute that<\/p>\n
                 a contractual tenant has an estate or property in the subject-<\/p>\n
                 matter of the tenancy, and heritability is an incident of the<\/p>\n
                 tenancy.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
                  37.   The   Supreme   Court   in  Gantusa   H.   Baddi   v.<\/p>\n<\/blockquote>\n
Meerabai   G.   Pai     (2000)   4   SCC   586   )  considered  the<\/p>\n
question whether the tenancy for non-residential purpose can<\/p>\n
be held to be heritable under the Karnataka Rent Control Act<\/p>\n
and   held   that,   both   in   the   case   of   contractual   tenancy   and<\/p>\n
statutory tenancy,   the quality of the estate or interest is<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 31 ::\n<\/p>\n
the   same.  In   that   case,   the   Apex   court   adverted   to   a<\/p>\n
Constitution   Bench  decision   in  Gian   Devi   Anand  v.  Jeevan<\/p>\n
Kumar (1985) SCC 589, wherein it has been held that,<\/p>\n
                 “The  mere  fact  that   in  the  Act  no   provision  has been<\/p>\n
                 made  with regard  to  the  heirs of tenants  in respect  of<\/p>\n
                 commercial tenancies on the death  of the tenant after<\/p>\n
                 termination   of   the   tenancy,   as   has   been   done   in   the<\/p>\n
                 case of heirs of the tenants of residential premises, does<\/p>\n
                 not indicate that the legislature intended that the heirs<\/p>\n
                 of   the   tenants   of   commercial   premises   will   cease   to<\/p>\n
                 enjoy   the   protection   afforded   to   the   tenant   under   the<\/p>\n
                 Act.”\n<\/p>\n
\nIn   this   respect,   it   is   to   be   borne   in   mind   that   Kerala   Act<\/p>\n
expressly   includes   heir\/heirs   of   deceased   tenant   within   the<\/p>\n
definition of tenant.\n<\/p>\n<\/p>\n
                 38. It has also been held in  H.C.Pandey v. G.C.Paul<\/a><\/p>\n
{AIR1989 SC 1470} that:\n<\/p>\n<\/p>\n
               “It   is   now   well-settled   that   on   the   death   of   the   original<\/p>\n
               tenant,   subject   to   any   provision   to   the   contrary   either<\/p>\n
               negativing   or   limiting   the   succession,   the   tenancy   rights<\/p>\n
               devolve on the heirs of the deceased tenant.”<\/p>\n<\/blockquote>\n
But  it  may be noted that in Kerala  Act, there is  no provision<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 32 ::\n<\/p>\n
“negativing   or   limiting   the   succession”     but   heirs   are<\/p>\n
expressly   and   without   limitation   put   in   the   place   of   their<\/p>\n
predecessor for the purpose of considering them as  tenants.<\/p>\n
The same is the tenor of the decision reported in  Imdad Ali<\/p>\n
v. Keshav Chand<\/a> (2003) 4 SCC 635 that, a successor-in-<\/p>\n
interest   of   a   tenant   holds   his   tenancy   right   subject   to<\/p>\n
rights and obligations of his predecessor.  So, there is no<\/p>\n
reason   to   deny   the   heirs   the   right   their   predecessor   had,<\/p>\n
especially  in  the light  of the  explicit  definition  of  “tenant”  in<\/p>\n
Section   2(6)   to   include  the   heir   or   heirs   of   a   deceased<\/p>\n
tenant.\n<\/p>\n<\/p>\n
               39. In  George Peter’s  {ILR 1999(1)   Kerala 529}<\/p>\n
case also, a division bench of this court held that:<\/p>\n
               “There is no provision in the Act negativing or limiting the<\/p>\n
               right   of   the   heirs   from   stepping   into   the   shoes   of   the<\/p>\n
               deceased tenant.”\n<\/p><\/blockquote>\n
<\/blockquote>\n
Noting this, another division bench of this court in Prasannan,<\/p>\n
C.K.  v. T.P.Haris and others<\/a> {2005(2) ILR 373} also took<\/p>\n
the   view   that   “statutory  tenant   has   heritable   interest   in<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 33 ::\n<\/p>\n
the premises”.\n<\/p>\n<\/p>\n
                   40.     Thus   it   is   trite   that   whatever   be   the   right   or<\/p>\n
interest of a tenant, it is heritable.\n<\/p>\n<\/p>\n
                  41.   For   the   purpose   of   Section   11(17),   the   tenancy<\/p>\n
created with a person shall be on or before 1.4.1940, and he<\/p>\n
shall   continue   to   occupy   the   premises   demised   as   a   tenant.<\/p>\n
On   the   other   hand,   mere   continuance   of   tenancy   is   not<\/p>\n
sufficient to avail of that benefit or protection.   Such a tenant<\/p>\n
in  continuous occupation  cannot  be  evicted  on the  ground  of<\/p>\n
bona fide need of the landlord, in respect of a non-residential<\/p>\n
building   as   in   this   case.   When   that   tenancy   is   heritable,   the<\/p>\n
heirs of the original tenant succeeding to the estate continue<\/p>\n
to   be   the   tenants   by   reason   of   the   definition   of   the   term<\/p>\n
‘tenant’ in Section 2(6) that  tenant  includes – the heir or<\/p>\n
heirs  of a deceased  tenant  as  well.   The  tenant  continues<\/p>\n
with   the   tenancy   so   continued.   The   benefit,   protection   or<\/p>\n
privilege available under  Sub-section (17) of Section 11 is to<\/p>\n
the tenant in a tenancy arrangement which continues, subject<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 34 ::\n<\/p>\n
to the condition of continued occupation from 1.4.1940.   That<\/p>\n
continued occupation is not the occupation of the person with<\/p>\n
whom   the   contract   of   tenancy   was   entered   into,   but   of   the<\/p>\n
‘tenant’ in the tenancy arrangement.   By definition, the word<\/p>\n
‘tenant’ includes the heir or heirs of the person to whom the<\/p>\n
building   was   so   entrusted   on   commencement   of   tenancy,   in<\/p>\n
case   of   his   death.  Because   as   pointed   out   in  Damadilal   v.<\/p>\n
Parashram,<\/a> (1976) 4 SCC 855:\n<\/p>\n<\/p>\n
                 “The Rent Control  and Tenancy Acts  create  a special<\/p>\n
                 world of their own. They speak of life after death. The<\/p>\n
                 statutory tenancy arises phoenix-like out of the ashes of<\/p>\n
                 the contractual tenancy.\n<\/p><\/blockquote>\n
\n
                 The contractual tenant may die but the statutory tenant<\/p>\n
                 may live long thereafter. The statutory tenant is an ex-<\/p>\n
                 tenant and yet he is a tenant.”<\/p><\/blockquote>\n
                  42.   Section   11(17)   certainly   confers   a   benefit,<\/p>\n
protection   or   privilege   to   a   ‘tenant’   who   has   been   in<\/p>\n
continuous   occupation   of   a   building   from   1.4.1940.     In   the<\/p>\n
case of death of the tenant to whom the building was originally<\/p>\n
entrusted   from   1.4.1940,   leaving   his   heirs,   necessarily,   that<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 35 ::\n<\/p>\n
continuous   occupation   is   continued   by   the   tenant   through<\/p>\n
those   heirs,   because   the   definition   indicates   that   ‘tenant’<\/p>\n
includes   his   ‘heir   or   heirs’   as   well.     As   held   in  Imdad   Ali<\/p>\n
{2003(4)   S.C.C.   635},   ‘by   reason   of   death   of   the<\/p>\n
original tenant a new tenancy is not created’.<\/p>\n
                  43. The long title to the Act indicates that the Act is<\/p>\n
to regulate the leasing of the building and to control the rent.<\/p>\n
Noting   this   the   Full   Bench   in  Narayanan’s  case   has   opined<\/p>\n
that   “it   may   not   be   proper   to   reckon   the   Act   as   one<\/p>\n
conferring   the   benefits   on   the   tenants   alone.”     The<\/p>\n
reasons for enactment of the Act reveals that it is intended to,<\/p>\n
apart from regulating letting of buildings, “the prevention of<\/p>\n
unreasonable   eviction   of   tenants   from   building”   also.<\/p>\n
Section   11(17)   is   such   a   provision   with   that   end   in   view,   of<\/p>\n
preventing   eviction   of   a  tenant  occupying   the   building   right<\/p>\n
from   1.4.1940   onwards,   alleging   bona   fide   need   of   the<\/p>\n
landlord to occupy it for some purpose.\n<\/p>\n
\nC.R.P.NO.2012\/01<\/p>\n
                                                            :: 36 ::\n<\/p>\n<\/p>\n
                  44.     As   held   in  Imdad   Ali   v.   Keshav   Chand<\/a><\/p>\n
(2003) 4 SCC 635,<\/p>\n
                 “When the heirs of a tenant acquire benefit under the Act,<\/p>\n
                 the   same   would   be   subject   to   such   limitation   and   liability<\/p>\n
                 which has been provided under the Act.”\n<\/p>\n
But while including heirs also in the definition of tenant in the<\/p>\n
Act, the legislature has not intended or indicated any limitation<\/p>\n
or   restriction.   On   the   other   hand,   before   the   amendment   of<\/p>\n
the   definition   clause,   the   tenant   included   only   the   surviving<\/p>\n
spouse or a son or a daughter of the deceased tenant who had<\/p>\n
been living with him as a member of the family up to the date<\/p>\n
of his death.  But by reason of the amendment effected by Act<\/p>\n
7\/66   to   be  effective  from  20.7.1966,   the  definition   has  been<\/p>\n
expanded   to   include   heir   or   heirs   of   the   deceased   tenant<\/p>\n
irrespective whether they are living with the deceased tenant<\/p>\n
or   not.     Thus,   unlike   in   other   similar   legislations,   the   Kerala<\/p>\n
Act has expanded further an unrestricted definition of ‘tenant’<\/p>\n
to   include   all   heirs.     This   is   yet   another   indication   of   the<\/p>\n
legislative intent.\n<\/p>\n
\nC.R.P.NO.2012\/01<\/p>\n
                                                            :: 37 ::\n<\/p>\n<\/p>\n
                    45.   When   the   benefit   or   protection   from   eviction   is<\/p>\n
given to a tenant, who includes heir\/heirs as well, necessarily<\/p>\n
there is no reason to ascribe a restrictive meaning to the word<\/p>\n
‘tenant’, which the legislature has not expressly indicated, or<\/p>\n
which   does   not   arise   from   context,   to   confine   it   only   to   the<\/p>\n
person   to   whom   the   premises   has   been   entrusted   at   the<\/p>\n
commencement of the tenancy.\n<\/p>\n<\/p>\n
                    46.     On   the   other   hand,   a   perusal   of   similar<\/p>\n
legislations   prevalent   in   other   States,   will   reveal   that   the<\/p>\n
legislatures   there   had   conferred   only   restrictive   benefits   or<\/p>\n
privileges to the heirs of the deceased tenant.<\/p>\n
                    47.   Definition   of   ‘tenant’   in   Delhi   Rent   Control   Act,<\/p>\n
1958 is as follows:\n<\/p>\n<\/p>\n
           “2(l) “tenant” means any person by whom or on whose account or<\/p>\n
           behalf the  rent of any premises  is or, but for a special  contract,<\/p>\n
           would be, pay, and includes:–\n<\/p><\/blockquote>\n
           (i)        a sub tenant;\n\n           (ii)       any   person   continuing   in   possession   after   the\n\n           termination of his tenancy; and\n\n           (iii)      in   the   event   of   the   death   of   the   person   continuing   in\n\n<\/pre>\n
           possession after the termination of his tenancy, subject to the<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 38 ::\n<\/p><\/blockquote>\n
\n
           order   of   succession   and   conditions   specified,   respectively,   in<\/p>\n
           Explanation I                     and Explanation II to  this clause, such of<\/p>\n
           the aforesaid person:–\n<\/p><\/blockquote>\n
           (a)        spouse\n\n           (b)        son   or   daughter,   or,   where   there   are   both   son   and\n\n           daughter, both of them,\n\n           (c)        parents,\n\n           (d)        daughter-in-law,   being   the   widow   of   his   pre-deceased\n\n<\/pre>\n
           son,   as had been ordinarily living in the premises   with such<\/p>\n
           person as a member or members of his family up to the date of<\/p>\n
           his death, but does not  include:–\n<\/p><\/blockquote>\n
           (A)        any person against whom an order or decree for eviction<\/p>\n
           has been made, except  where such decree or order for eviction<\/p>\n
           is liable to be re-opened under the proviso to Section 3 of the<\/p>\n
           Delhi  Rent Control (Amendment)  Act, 1976, (18 of 1976).<\/p>\n
           (B)        any person to whom a licence,  as defined by Section 52<\/p>\n
           of   the   Indian   Easements   Act,   1881   (5   of   1882)   has   been<\/p>\n
           granted.\n<\/p><\/blockquote>\n
           Explanation II —   If the person, who acquires, by succession,<\/p>\n
           the right to continue in possession after the termination of the<\/p>\n
           tenancy, was not finally dependent on the deceased person on<\/p>\n
           the date of his death, such successor  shall acquire such right<\/p>\n
           for   a   limited   period   of   one   year,   and,   on   the   expiry   of   that<\/p>\n
           period, or on his death, whichever is earlier, the right of such<\/p>\n
           successor to continue in possession after the termination of the<\/p>\n
           tenancy shall become extinguished.<\/p><\/blockquote>\n
           Explanation   III   —   For   the   removal   of   doubts,   it   is   hereby<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 39 ::\n<\/p>\n
           declared that:–\n<\/p>\n
           (b)            the right of every successor, referred to in Explanation<\/p>\n
           I, to continue in possession after the termination of the tenancy<\/p>\n
           shall  be  personal  to   him  and shall   not, on  the  death  of  such<\/p>\n
           su
\n              ccessor, devolve on any of his heirs”.      [Emphasis supplied}<\/p>\n
             48.  Karnataka  Act provides that:\n<\/p>\n<\/p>\n
                  (n)       “Tenant” means any person by whom or on whose<\/p>\n
                  account or behalf the rent of any premises, is or but for a<\/p>\n
                  special contract would be, payable, and includes:–<\/p>\n<\/blockquote>\n
                  (i)       a sub-tenant;\n\n                  (ii)      any   person   continuing   in   possession   after   the\n\n<\/pre>\n
                  termination   of   his   tenancy,   but   does   not   include   any<\/p>\n
                  person to  whom  a  licence as defined in section 52  of the<\/p>\n
                  Indian   Easements   Act,   1882  (Central   Act   5   of   1882) has<\/p>\n
                  been granted.\n<\/p><\/blockquote>\n
                  5.        Inheritability of tenancy –\n<\/p><\/blockquote>\n
                  (1)       In   the   event   of   death   of   a   tenant,   the   right   of<\/p>\n
                  tenancy   shall   devolve   for  a  period   of  five   years  from   the<\/p>\n
                  date of his death to his successors in the following order,<\/p>\n
                  namely —\n<\/p><\/blockquote>\n
                  (a)       spouse\n\n                  (b)       son   or   daughter   or   where   there   are   both   son   and\n\n                  daughter both of them;\n\n                  (c)       parents;\n\n                  (d)       daughter-in-law, being the widow of his predeceased\n\n                  son:\n\n\nC.R.P.NO.2012\/01\n\n                                                            :: 40 ::\n\n\n\n\n<\/pre>\n
                Provided   that   the  successor  has  ordinarily   been  living   or<\/p>\n
                carrying   on   business   in   the   premises   with   the   deceased<\/p>\n
                tenant   as   a   member   of   his   family   up   to   the   date   of   his<\/p>\n
                death and was dependent on the deceased tenant:”<\/p>\n<\/blockquote>\n
                                                        [Emphasis supplied]<\/p>\n<\/blockquote>\n
                 49.     But,   in   the   Kerala   Act,   no   such   restriction   is<\/p>\n
expressly made in the definition clause nor impliedly spelt out<\/p>\n
from the context of using that expression in Section 11(17).<\/p><\/blockquote>\n
                  50.  If the benefit, protection or privilege  available in<\/p>\n
Section   11(17)   is   confined   to   the   person   with   whom   the<\/p>\n
tenancy arrangement started on 1.4.1940 or earlier alone, as<\/p>\n
held   in  Narayanan’s  case,   its   effect   is   to   delegislate   and<\/p>\n
delete   that   provision   from   the   statute   book.     Taking   into<\/p>\n
account, the probable age of the tenant on or before 1.4.1940<\/p>\n
and   the   lapse   of   time   thereafter,   it   is   not   likely   that   such   a<\/p>\n
person   may   be   available   or   if   at   all   available   he   will   be   an<\/p>\n
octogenarian   who   will   also   have   to   surrender   soon   that<\/p>\n
privilege to the time.   The provision will then have no effect.<\/p>\n
A legislative provision otherwise effective and having meaning<\/p>\n
cannot be destroyed by judicial interpretation giving restricted<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 41 ::\n<\/p>\n
meaning   to   any   word   in   that   provision   which   is   expressly<\/p>\n
indicated as to be interpreted.\n<\/p>\n<\/p>\n
                  51.  Judicial pronouncements is not capable of having<\/p>\n
the effect of legislations.  It cannot equally delegislate.  It can<\/p>\n
only   declare   a   provision   ultra   vires   upon   specific   challenge<\/p>\n
based   on  constitutionality.     It   is   altogether  different   from   an<\/p>\n
interpretation resulting in delegislating a provision or deleting<\/p>\n
a provision from statute book on judicial pronouncement.  The<\/p>\n
provision   in   Section   11(17)   is   in   no   way   transgressing   the<\/p>\n
limits of legislative sphere. In the words of Lord Sankey L.C.,<\/p>\n
quoting   Issacs,   J.   “unless   it   becomes   clear   beyond<\/p>\n
reasonable   doubt   that   the   legislation   in   question<\/p>\n
transgresses the limits laid down by the organic law of<\/p>\n
the Constitution it must be allowed to stand as the true<\/p>\n
expression   of   the   national   will  {See  Shell   Co.   of<\/p>\n
Australia  v.  Federal   Commr.   of   Taxation  {1931       AC<\/p>\n
275}.   As   observed   by   Francis   Bennion   in   his  Statutory<\/p>\n
Interpretation,<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 42 ::\n<\/p>\n
                  “An Act must be construed so that its provisions are given<\/p>\n
                  force and effect rather than being rendered nugatory.”<\/p>\n
                  52.   Therefore,   rather   than   annihilating   the   provision<\/p>\n
which expresses the will of the legislature, it must be allowed<\/p>\n
to stand, giving the word ‘tenant’ the meaning that has been<\/p>\n
ascribed to it by the legislature itself. Normally the legislature<\/p>\n
is the best judge of what is good for the community, but the<\/p>\n
court should not shirk its duty to determine the validity of the<\/p>\n
law   {Municipal   Corpn.   of   the   City   of   Ahmedabad  v.  Jan<\/p>\n
Mohd.   Usmanbhai<\/a>     {(1986)   3   SCC   20   –   AIR   1986   SC<\/p>\n
1205}  and  {Dalmia   Cement   (Bharat)   Ltd.   v.   Union   of<\/p>\n
India   (1996) 10 SCC 104}.   It is to be remembered here,<\/p>\n
that   there   is   no   challenge   as   to   the   validity   of   the   provision<\/p>\n
under examination.\n<\/p>\n<\/p>\n
                  53.   “Legislature   understands   and   correctly<\/p>\n
appreciates the needs of its own people, its laws are directed<\/p>\n
to   problems   made   manifest   by   experience,   and   its<\/p>\n
discriminations   are   based   on   adequate   grounds.   The<\/p>\n
presumption   of   constitutionality   is   indeed   so   strong   that   in<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 43 ::\n<\/p>\n
order   to   sustain   it,   the   Court   may   take   into   consideration<\/p>\n
matters   of   common   knowledge,   matters   of   common   report,<\/p>\n
the history of the times and may assume every state of facts<\/p>\n
which can be conceived existing at the time of legislation”.<\/p>\n
                  54.   That   is   why   similar   provision   contained   in   the<\/p>\n
preceding   statute   is   again   continued   in   the   present   one.<\/p>\n
Certainly   then,   it   can   only   be   with   a   purposive   approach   of<\/p>\n
protecting   the   ‘tenant’  (as   defined)   in   occupation   of   the<\/p>\n
building   continuously   since   1.4.1940,   with   no   room   for   any<\/p>\n
contextual   restriction   as   contained   in   Section   11(11)(i)   as<\/p>\n
discussed   above,   but   in   similar   sense   as   in   Section   11(12)<\/p>\n
where another similar benefit or privilege is dealt with.<\/p>\n
                  55.     There  is   also   no   situation   for   reading  down  the<\/p>\n
provision   as   legislature   has   clearly   indicated   the   meaning   of<\/p>\n
the   word   tenant   and   as   no   other   meaning   arise   from   the<\/p>\n
context of Section 11(17).   As held in  Minerva Mills Ltd. v.<\/p>\n
Union of India<\/a> {1980 (3) S.C.C. 625}:\n<\/p>\n<\/p>\n
                “The device of reading down is not to be resorted in order to<\/p>\n
                save   the   susceptibilities   of   the   lawmakers,   nor   indeed   to<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 44 ::\n<\/p>\n
                imagine a law of one’s liking to have been passed.  One must<\/p>\n
                at least take the Parliament at its word …  If the Parliament<\/p>\n
                has   manifested   a   clear   intention   to   exercise   an   unlimited<\/p>\n
                power, it is impermissible to read down the amplitude of that<\/p>\n
                power   so   as   to   make   it   limited.     The   principle   of   reading<\/p>\n
                down cannot be invoked or applied in opposition to the clear<\/p>\n
                intention of the legislature.”\n<\/p>\n<\/p>\n
                56.  As held in Sanjaykumar v. Narinder Verma {2006<\/p>\n
(6) S.C.C. 467}:\n<\/p>\n<\/p>\n
                   “There  being  no   substantive challenge  to  the  Rules, there<\/p>\n
                  was no question of striking down the Rules, nor was there<\/p>\n
                  any situation of reading down the Rules.”<\/p><\/blockquote>\n
                 57. Moreover, reading down is not permissible in such<\/p>\n
a manner as would fly in the face of the express terms of the<\/p>\n
statutory provisions {See Gautam v. Union of India {1993<\/p>\n
(1) S.C.C. 78}.\n<\/p>\n<\/p>\n
                 58.  In the grab of “reading down”, however, it is not<\/p>\n
open to read words and expressions not found in the statute<\/p>\n
and   thus   venture   into   a   kind   of   judicial   legislation,   {see<\/p>\n
Calcutta   Gujarati   Education   Society   v.   Calcultta<\/p>\n
Municipal   Corporation   {2003(10)   S.C.C.   533}.     But   that<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 45 ::\n<\/p>\n
was what has been , in effect, done in Narayanan’s case.   As<\/p>\n
further held by the Supreme Court in that case:<\/p>\n
                   “The  rule  of  reading  down  is  to be  used  for  the limited<\/p>\n
                  purpose of making  a particular  provision  workable and to<\/p>\n
                  bring it in harmony with other provisions of the statute.”<\/p>\n<\/blockquote>\n
Really,  there  is   no  unworkability   for  Section  11(17)   and  it  is<\/p>\n
not   in   any   way   disharmonious   with   similar   provisions   in   the<\/p>\n
Act, as already discussed.\n<\/p>\n<\/p>\n
                 59.   Legislations   like   the   Act   have   to   be   viewed   with<\/p>\n
greater latitude than laws touching civil rights such as freedom<\/p>\n
of speech, religion etc. The legislature should be allowed some<\/p>\n
play   in   the   joints,   because   it   has   to   deal   with   complex<\/p>\n
problems   which   do   not   admit   of   solution   through   any<\/p>\n
doctrinaire or strait-jacket formula and this is particularly true<\/p>\n
in the case of legislation dealing with eviction and rent control<\/p>\n
matters, where, having regard to the nature of the problems<\/p>\n
required to be dealt with, greater play in the joints has to be<\/p>\n
allowed to the legislature. “The court should feel more inclined<\/p>\n
to give judicial deference to legislative judgment in such field<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 46 ::\n<\/p>\n
than   in   other   areas   where   fundamental   human   rights   are<\/p>\n
involved”.\n<\/p>\n<\/p>\n
                   60.   The   Court   must   therefore   adjudge   by   the<\/p>\n
generality   of   its   provisions   and   not   by   inequities   or   by   the<\/p>\n
possibilities of abuse of any of its provisions. Because,  if any<\/p>\n
inequities or possibilities of abuse come to light, the legislature<\/p>\n
can  always   step  in  and   enact  suitable  amendatory   legislation<\/p>\n
It   would   be   within   the   exclusive   domain   of   the   judiciary   to<\/p>\n
expound the law as it is and not to speculate what it should be<\/p>\n
as it is the function of the legislature.\n<\/p>\n<\/p>\n
                   61.  The  meaning  of   a  word or   expression  used  in  a<\/p>\n
statute often is coloured by the context in which it occurs. It is<\/p>\n
the duty of the Court to determine in what particular meaning<\/p>\n
and  particular  shade of meaning  the word or expression  was<\/p>\n
used   by   the   law-makers.   In   discharging   that   duty   the   Court<\/p>\n
will take into account the context in which it occurs, the object<\/p>\n
to   serve   which   it   was   used,   its   collocation,   the   general<\/p>\n
congruity   with   the   concept   or   object   it   was   intended   to<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 47 ::\n<\/p>\n
articulate  and a  host  of  other  considerations.   Bearing this in<\/p>\n
view, when one approaches the word ‘tenant’ used in Section<\/p>\n
11(17)   in  comparison  with  the  context  in  which  that   word  is<\/p>\n
used   in   different   provisions   including   11(11)(i)   and   11(12)<\/p>\n
with variations in its meaning as already discussed, it does not<\/p>\n
admit a different shade of meaning to that expressly indicated<\/p>\n
in the interpretative provision  Section 2(6).<\/p>\n
                   62. The primary function of the courts is to interpret<\/p>\n
and   apply   the   laws   according   to   the   will   of   those  who  made<\/p>\n
them   and   not   to   transgress   into   the   legislative   domain   of<\/p>\n
policy-making.   The   job   of   a   Judge   is   judging   and   not   law-<\/p>\n
making. In Lord Devlin’s words, “Judges are the keepers of<\/p>\n
the   law   and   the   keepers   of   these   boundaries   cannot,<\/p>\n
also,   be   among   outriders”.  A   Judge   must   not   alter   the<\/p>\n
material of which the Act is woven, but he can and should iron<\/p>\n
out the creases.  But ironing out shall not result in burning out<\/p>\n
the   fabric   of   the   statute.     And   that   is   the   effect   of   the<\/p>\n
interpretation given in Narayanan’s case.<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 48 ::\n<\/p>\n<\/p>\n
                   63.     The   benefit   conferred   on   a   tenant   in   terms   of<\/p>\n
Section   11(17)   when   available   to   heirs   of   the   person   with<\/p>\n
whom   the   contract   of   tenancy   commenced,   it   will   not<\/p>\n
constitute   a   permanent   tenancy.     Eviction   can   be   sought   for<\/p>\n
against such a tenant on any of  the grounds other than that<\/p>\n
under  Section  11(3),  unqualifiedly,  proving existence  of  such<\/p>\n
grounds.  Even under Section 11(3) eviction of a tenant since<\/p>\n
1.4.1940 is permissible, if it is shown that the tenant did not<\/p>\n
occupy   the   premises   continuously   since   then,   subject   to   the<\/p>\n
explanation to Section 11(17).  So, the tenancy with a tenant<\/p>\n
entitled to the benefit of Section 11(17) cannot be termed as a<\/p>\n
permanent   tenancy   when   that   benefit   is   available   to   the<\/p>\n
heir\/heirs of a deceased tenant.\n<\/p>\n<\/p>\n
                   64.   Even otherwise, no building tenant in a notified<\/p>\n
area   can    be   evicted   at   all   unless   any   of   the   grounds<\/p>\n
statutorily   recognised   as   per   the   Act   is   available.     And   the<\/p>\n
tenants   in   such   cases   will   continue   indefinitely   until   they<\/p>\n
voluntarily   surrender   the   premises.     Can   such   tenancy   be<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 49 ::\n<\/p>\n
termed   as   permanent   tenancy?     Answer   is   in   emphatic<\/p>\n
negative.     Same   is   the   situation   in   case   of   application   of<\/p>\n
Section 11(17) to a ‘tenant’ who includes the heir\/heirs of a<\/p>\n
deceased tenant.\n<\/p>\n<\/p>\n
                   65.     Even   in   spite   of   the   protection   ensured   to   a<\/p>\n
tenant   in   Section   11(17),   the   landlord   can   even   seek   for<\/p>\n
revision   of   rent   by   initiating   appropriate   proceedings.<\/p>\n
Landlord   also   cannot   have   grievance   that   he   may   have   to<\/p>\n
continue the lease on the same rate of rent fixed years ago. A<\/p>\n
tenant   is   always,   thus,   a   tenant   and   there   is   no   statutory<\/p>\n
metamorphosis   by   reason   of   the   said   provision.   This   is   yet<\/p>\n
another facet which demonstrates that the provision does not<\/p>\n
result   in   permanent   tenancy   or   in   virtual   conferment   of<\/p>\n
ownership.\n<\/p>\n<\/p>\n
                   66.     The   scheme   of   Section   11   of   the   Act   indicates<\/p>\n
that right of the landlord to get eviction on different grounds is<\/p>\n
always  restricted.   On  deposit of arrears  of  rent, an  order  of<\/p>\n
eviction  can  be   vacated.    When  sub tenant  is   sent   away,  on<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 50 ::\n<\/p>\n
receipt   of   notice   from   landlord,   such   ground   for   eviction<\/p>\n
vanishes.   After reconstruction, space in the new building can<\/p>\n
be  opted   to   by   the   evicted   tenant.     For   eviction   on     several<\/p>\n
grounds as under sub-section (3), (4), (7) and (8) of Section<\/p>\n
11,   as   specified   in   Section   11(10),   the   claim   of   the   landlord<\/p>\n
shall be bona fide.  Even a landlord cannot urge the ground of<\/p>\n
bona   fide   need   under   Section   11(3)   merely   as   a   ruse   for<\/p>\n
eviction.     On   eviction,   he   has   to   demonstrate   his   bona   fide<\/p>\n
need by occupying the premises for that need within a month<\/p>\n
of getting delivery of the building from which the tenant was<\/p>\n
evicted.  A mere occupation is not sufficient.  It should be for<\/p>\n
at least a period of six months; unless some sufficient reason<\/p>\n
is   shown.     Otherwise,   the   evicted   tenant   can   seek   re-<\/p>\n
possession.       The   provisos   to   Sub-section   (3)   are   further<\/p>\n
fetters   to   seek   eviction   on   the   ground   of   bona   fide   need.<\/p>\n
These  are   also  several  of   the  restrictions   on  the  right  to   get<\/p>\n
eviction   even   under   Section   11(3).     Thus,   the   restriction   on<\/p>\n
the right of the landlord to get the tenant evicted is pervading<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 51 ::\n<\/p>\n
all over Section 11.  Sub-Section (17) is  manifestation of yet<\/p>\n
another restriction on eviction of a particular class of tenants.<\/p>\n
                67.     The   constitution   bench   of   the   Supreme   Court   in<\/p>\n
Gian   Devi   v.   Jeevan   Kumar   {AIR   1985   S.C.   796}<\/p>\n
considered a similar  aspect.   The point considered  there was<\/p>\n
as follows:\n<\/p>\n<\/p>\n
                  “The   correctness   of   this   view   that   on   death   of   a   tenant<\/p>\n
                  whose   tenancy  in respect of any  commercial  premises  has<\/p>\n
                  been   terminated   during   his   lifetime,   whether   before   the<\/p>\n
                  commencement  of any  eviction  proceeding   against  him  or<\/p>\n
                  during   the   pendency   of   any   eviction   proceeding   against<\/p>\n
                  him,   the   heirs   of   the   deceased   tenant   do   not   enjoy   the<\/p>\n
                  protection afforded by the Act to the tenant and they do not<\/p>\n
                  have any right to continue to remain in possession because<\/p>\n
                  they   do   not   inherit   the   tenancy   rights   of   the   deceased<\/p>\n
                  tenant, is challenged in this appeal.”<\/p>\n<\/blockquote>\n
It   was   held   that   the   interest   or   estate   which   a   tenant   has<\/p>\n
under the Act, despite the termination of contractual tenancy<\/p>\n
creates a heritable interest.  The Supreme Court made it clear<\/p>\n
that:\n<\/p>\n<\/p>\n
                  “The termination of the contractual tenancy in view of the<\/p>\n
                  definition   of   tenant   in   the   act   does   not   bring   about   any<\/p>\n
                  change in the status and legal position of the tenant, unless<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 52 ::\n<\/p><\/blockquote>\n
\n
                  there   are   contrary   provisions   in   the   Act;   and,   the   tenant<\/p>\n
                  notwithstanding   the   termination   of  tenancy  does   enjoy   an<\/p>\n
                  estate or interest in the tenanted premises.   This interest or<\/p>\n
                  estate which the tenant under the act despite termination of<\/p>\n
                  the   contractual   tenancy   continues   to   enjoy   creates   a<\/p>\n
                  heritable   interest   in   the   absence   of   any   provision   to   the<\/p>\n
                  contrary.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
Noting the definition of ‘tenant’ in the Act considered by the<\/p>\n
Supreme Court that  tenant includes any person continuing in<\/p>\n
possession, it was further held that in the absence of provision<\/p>\n
to that effect:\n<\/p>\n<\/p>\n
               “the   heritable   interest   of   the   heirs   of   the   statutory   tenant<\/p>\n
               would   devolve   on   all   the   heirs   of   the   ‘so   called   statutory<\/p>\n
               tenant’ on his death and the heirs of such tenant would in law<\/p>\n
               step into his position.”,<\/p>\n
and that the heirs of tenants become entitled:<\/p>\n<\/blockquote>\n
               “to inherit  the  status  and  position  of the  statutory   tenant  on<\/p>\n
               his death”.\n<\/p><\/blockquote>\n
\nThe Supreme Court further held that:\n<\/p><\/blockquote>\n
               “The   heirs   of   the   deceased   tenant   in   the   absence   of   any<\/p>\n
               provision   in   the   Rent   Act   to   the   contrary   will   step   into   the<\/p>\n
               position   of   the   deceased   tenant   and   all   the   rights   and<\/p>\n
               obligations   of   the   deceased   tenant   including   the   protection<\/p>\n
               afforded to the deceased tenant under the Act will devolve on<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 53 ::\n<\/p><\/blockquote>\n
\n
               the heirs of the deceased tenant.”\n<\/p><\/blockquote>\n
<\/blockquote>\n
There   is   specific   and   express   inclusion   of   heirs   in   Kerala   Act<\/p>\n
and   there   is   no   contra   indication   in   Section   11(17)   to   hold<\/p>\n
otherwise.<\/p><\/blockquote>\n
                   68.     In   the   light   of   this,   to   borrow   the   words   of<\/p>\n
Supreme Court in   Damadilal v. Parashram<\/a> {AIR 1976 SC<\/p>\n
2229}:\n<\/p>\n<\/p>\n
               “We find it difficult to appreciate how in this country we can<\/p>\n
               proceed on the basis that a tenant whose contractual tenancy<\/p>\n
               has   determined   but   who   is   protected   against   eviction   by   the<\/p>\n
               statute, has no right of property  but only a personal right to<\/p>\n
               remain in occupation.”\n<\/p><\/blockquote>\n
<\/blockquote>\n
                   69.     Above   all,   the   benefit   or   protection   available<\/p>\n
under   Section   11(17)   is   for    a   tenant   who   has   been   in<\/p>\n
continuous occupation of a building from 1st April, 1940<\/p>\n
as a tenant.  Let the provision be read in full once again:<\/p>\n<\/blockquote>\n
           ‘Notwithstanding   anything   contained   in   this   section   a   tenant   who<\/p>\n
           has been in continuous occupation of a building from 1st April 1940<\/p>\n
           ‘as
\n                 a   tenant’   shall   not   be   liable   to   be   evicted   for   bona   fide<\/p>\n
           occupation of the landlord or of the occupation by any member of<\/p>\n
           his   family   dependent   on   him,   provided   that   a   landlord   of   a<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 54 ::<\/p><\/blockquote>\n
\n<\/blockquote>\n
           residential   building   shall   be   entitled  to   evict   such   a   tenant   of   that<\/p>\n
           building if the landlord has been living in a place outside the city,<\/p>\n
           town or village in which the building is situated for a period of not<\/p>\n
           less   than   five   years   before   he   makes   an   application   to   the   Rent<\/p>\n
           Control   Court   for   being   put   in   possession   of   the   building   and<\/p>\n
           requires the building, bona fide for his own permanent residence or<\/p>\n
           for   the   permanent   residence   of   any   member   of   his   family   or   the<\/p>\n
           landlord is in dire need of a place for residence and has none of his<\/p>\n
           own.” {emphasis supplied}<\/p>\n
Even if the words emphasised are omitted from the provision,<\/p>\n
it   will   have   the   meaning   that  “a   tenant   in   continuous<\/p>\n
occupation   from   1.4.1940   shall   not   be   liable   to   be   evicted’.<\/p>\n<\/blockquote>\n
Then,   what   is   the   purpose   of   the   words   ‘as   a   tenant’<\/p>\n
specifically used in the section in the sense that  a tenant in<\/p>\n
occupation   as   a   tenant.    Necessarily,   it   should   add   to   the<\/p>\n
meaning   and   sense   otherwise   obtained.     It   is   more   than  a<\/p>\n
tenant in occupation.   That repeated usage of word ‘tenant’<\/p>\n
that: a tenant who has been in continuous occupation of<\/p>\n
a
\n   building from 1st
\n                                           April
\n                                                        1940 ‘
\n                                                                          as
\n                                                                             a tenant’,
\n                                                                                         in that provision,<\/p>\n
indicates   that   the   continued   occupant   shall   also   be   ‘as   a<\/p>\n
tenant’, as meant by the definition clause.   That is the only<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 55 ::\n<\/p>\n
import that can be gathered by the usage of the phrase ‘as a<\/p>\n
tenant’.    The  provision cannot  have  the same meaning  with<\/p>\n
and without that phrase. Therefore, the phrase ‘as a tenant’<\/p>\n
appearing  has  to be taken  as  emphasis   for  the status  of  the<\/p>\n
occupant viz., as a  tenant  as defined.   There, the legislature<\/p>\n
did  not use  any further  qualification  to  indicate  that  it  is  the<\/p>\n
person who was originally inducted.\n<\/p>\n<\/p>\n
                   70.  Therefore,  on any look, – whether based on the<\/p>\n
definition of the term ‘tenant’, based on inheritance, based on<\/p>\n
legislative   intention   gatherable   even   from   the   preceding<\/p>\n
statute,   based   on   comparison   of   the   term   used   in   similar<\/p>\n
provisions conferring benefits to tenants, based on creation of<\/p>\n
special interest in favour of a class of tenants with continued<\/p>\n
occupation  from  a particular date, based  on  the  trend  of  the<\/p>\n
statute imposing different types of restrictions on the right of<\/p>\n
eviction  available   to   the   landlord,  based   on  the   generality  of<\/p>\n
the provision of the Act, based on the purpose behind usage of<\/p>\n
the   words   ‘as   a   tenant’   in   the   provision   under   examination<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 56 ::\n<\/p>\n
etc.,   the   word   ‘tenant’   appearing   in   Section   11(17),   shall<\/p>\n
necessarily be ascribed the same meaning as contained in the<\/p>\n
definition in Section 2(6).  Consequently, the heir or heirs of<\/p>\n
a   deceased   tenant  also   will   come   within   the   protective<\/p>\n
umbrella   of   Section  11(17)   on  proof   of   continued  occupation<\/p>\n
from 1.4.1940 of their predecessor followed by that of their.<\/p>\n
                   71. The point referred is answered accordingly.<\/p>\n
                                                                             Sd\/-\n<\/p>\n
                                                                 (K.A. ABDUL GAFOOR)<\/p>\n
                                                                                JUDGE<\/p>\n
Kurian Joseph, J.(Concurring with K.Padmanabhan Nair, J.)<\/p>\n
                         72.       Whether the expression ‘tenant’ as appearing<\/p>\n
under Section 11(17) of the Kerala Buildings (Lease and Rent<\/p>\n
Control) Act, 1965 (hereinafter referred to as ‘the Act’)requires<\/p>\n
attribution of a contextual meaning different from the normal<\/p>\n
meaning   as   defined   in   Section   2(6)   of   the   Act   is   the   crucial<\/p>\n
issue. The Full Bench decision of this Court in  Narayanan v.<\/p>\n
Shalima<\/a> (2003(2) KLT 317) held that the protection conferred<\/p>\n
on a tenant under Section 11(17) of the Act against eviction on<\/p>\n
the   ground   of   bona   fide   need   of   the   landlord,   is   a   personal<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 57 ::\n<\/p>\n
privilege   which   lapses   with   the   death   of   the   original   tenant.<\/p>\n
The  said  decision has been doubted by  a Division  Bench and<\/p>\n
hence this reference.     I had the benefit of going through the<\/p>\n
illuminative     judgment   of   my   learned   brother   Padmanabhan<\/p>\n
Nair(J).   I fully agree with the view of my learned brother that<\/p>\n
the Full Bench decision in Narayanan’s case does not require<\/p>\n
reconsideration.     However,   I   feel   that   a   little   more   flavour<\/p>\n
could be added so as to sharpen the analysis.<\/p>\n
                      73.   At the outset, it is to be borne in mind that the<\/p>\n
Act   provides   for,   permits   and   requires   the   definitions   to   be<\/p>\n
given contextual meaning.   The sub-section 2(6) dealing with<\/p>\n
‘tenant’   is   not   to   be   truncated   and   read.     It   should   be   read<\/p>\n
from the opening words.   The provision to the extent relevant<\/p>\n
reads as follows :-\n<\/p>\n<\/p>\n
                     2.Definitions:–In   this   Act,   unless   the   context   otherwise<\/p>\n
                     requires,–\n<\/p><\/blockquote>\n
<\/blockquote>\n
                                                       -x x x x x x x x x x x x-\n<\/p><\/blockquote>\n
<\/blockquote>\n
                                                       -x x x x x x x x x xx x x-\n<\/p><\/blockquote>\n
\n                     [(6)   “tenant”   means   any   person   by   whom   or   on   whose<\/p>\n
                     account rent is payable for a building and includes:–<\/p>\n<\/blockquote>\n
                                (i) the heir or heirs of a deceased tenant, and<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 58 ::<\/p><\/blockquote>\n
                     (ii) a person continuing in possession after the termination of<\/p>\n
                     the   tenancy   in   his   favour,   but   does   not   include   a<\/p>\n
                     Kudikidappukaran as defined in the Kerala Land Reforms Act,<\/p>\n
                     1963 (Kerala Act 1 f 1964), or a person placed in occupation<\/p>\n
                     of a building by its tenant, or a person to whom the collection<\/p>\n
                     of   rents   or   fees   in   a   public   market,   cart-stand   or   slaughter<\/p>\n
                     house or of rents for shops has been farmed out or leased by<\/p>\n
                     a   Municipal   Council,   Municipal   Corporation,   Township<\/p>\n
                     Committee or Panchayat;]<\/p>\n
Section 11 dealing with eviction of tenants has prescribed the<\/p>\n
various safeguards against unreasonable eviction.   Section 11<\/p>\n
(3),   subject   to   the   conditions   therein  permits   eviction   for   the<\/p>\n
bona fide need of the landlord. It reads as follows :-<\/p>\n
                       11.Eviction of tenants:–\n<\/p><\/blockquote>\n
<\/blockquote>\n
                                                         -x x x x x x x x x x-\n<\/p><\/blockquote>\n
<\/blockquote>\n
                                                         -x x x x x x x x x x-\n<\/p><\/blockquote>\n
\n                       (3)  A   landlord  may   apply   to   the   Rent   Control   Court   for   an<\/p>\n
                       order directing the  tenant to put the landlord  in possession<\/p>\n
                       of the building if he bona fide needs the building for his own<\/p>\n
                       occupation   or   for   the   occupation   by   any   member   of   his<\/p>\n
                       family dependent on him:\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
                                  Provided   that   the   Rent   Control   Court   shall   not   give<\/p>\n
                       any such direction if the landlord has another building of his<\/p>\n
                       own   in   his   possession   in   the   same   city,   town   or   village<\/p>\n
                       except   where   the   Rent   Control   Court   is   satisfied   that   for<\/p>\n
                       special   reasons,   in   any   particular   case   it   will   be   just   and<\/p>\n
                       proper to do so:\n<\/p><\/blockquote>\n
<\/blockquote>\n
                                   Provided further that the Rent Control Court shall not<\/p>\n
                       give   any   direction   to   a   tenant   to   put   the   landlord   in<\/p>\n
                       possession,   if   such   tenant  is   depending   for   his   livelihood<\/p>\n
                       mainly  on   the   income   derived   from   any   trade   or   business<\/p>\n
                       carried   on   in   such   building   and   there   is   no   other   suitable<\/p>\n
                       building available in the locality for such person to carry on<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 59 ::\n<\/p><\/blockquote>\n
\n
                       such trade or business:\n<\/p><\/blockquote>\n
<\/blockquote>\n
                                   Provided   further   that   no   landlord   whose   right   to<\/p>\n
                       recover   possession   arises   under   an   instrument   of   transfer<\/p>\n
                       inter vivos shall be entitled to apply to be put in possession<\/p>\n
                       until the expiry of one year from the date of the instrument:<\/p>\n<\/blockquote>\n
                                   Provided   further   that   if   a   landlord   after   obtaining   an<\/p>\n
                       order to be put in possession  transfers  his  rights in respect<\/p>\n
                       of the building to another person, the transferee shall not be<\/p>\n
                       entitled   to   be   put   in   possession   unless   he  proves   that   he<\/p>\n
                       bona   fide   needs  the   building   for   his   own   occupation   or   for<\/p>\n
                       the  occupation   by any  member   of  his  family  dependent   on<\/p>\n
                       him.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
However, Section 11(17)  further provides that a   tenant, who<\/p>\n
has   been   in   continuous   occupation   of   a   non-residential<\/p>\n
premises   from   1.4.1940   cannot   be   evicted   for   the   bona   fide<\/p>\n
need of the landlord.  The provision reads as follows :-<\/p>\n
                        11.(17)   Notwithstanding   anything   contained   in   this   section<\/p>\n
                        a   tenant   who   has   been   in   continuous   occupation   of   a<\/p>\n
                        bu
\n                           ilding  from 1st
\n                                                       Ap
\n                                                           ril 1940  as a tenant, shall  not be liable<\/p>\n
                        to be evicted for bona fide occupation of the landlord  or of<\/p>\n
                        the occupation by any member  of his family dependent on<\/p>\n
                        him, provided that a landlord of a residential building shall<\/p>\n
                        be   entitled   to   evict   such   a   tenant   of   that   building   if   the<\/p>\n
                        landlord has been living in a place outside the city, town or<\/p>\n
                        village  in   which  the  building   is  situated  for  a  period  of  not<\/p>\n
                        less  than five years before  he makes  an application to the<\/p>\n
                        Rent   Control   Court   for   being   put   in   possession   of   the<\/p>\n
                        building,   and   requires   the   building   bona   fide   for   his   own<\/p>\n
                        permanent residence or for the permanent residence of any<\/p>\n
                        member   of   his   family   or   the   landlord   is   in   dire   need   of   a<\/p>\n
                        place for residence and has none of his own.<\/p>\n<\/blockquote>\n
Whether the tenancy referred to above in Section 11(17) would<\/p>\n
continue eternally through his heirs is the question.<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 60 ::\n<\/p>\n<\/p>\n
                      74.       The   Rent   Control   Act   no   doubt   is   a   social<\/p>\n
welfare   legislation   intended   to   protect   and   safeguard   the<\/p>\n
interests of the tenants.   It is “an  Act to regulate the lease of<\/p>\n
buildings and to control the rent of the buildings in the State of<\/p>\n
Kerala.”  As held by the Supreme Court in  Ouseph Mathai v.<\/p>\n
M.Abdul Khadir  (AIR<\/a> 2002  SC 110), the Act does not confer<\/p>\n
unfettered   powers   on   the   tenants   to   remain   in   possession   of<\/p>\n
the leased premises for ever.  In the statement of objects and<\/p>\n
reasons,   the   purpose   of   the   Act   as   originally   introduced   in<\/p>\n
1959   are;   (1)   regulation   of   the   letting   of   buildings,   (2)<\/p>\n
prevention of unreasonable eviction of tenants from buildings<\/p>\n
and  (3)  the control of rent in  respect of the leased premises.<\/p>\n
While   analysing   the   contextual   meaning   of   a   provision,   the<\/p>\n
legislative   intent   is   certainly   a   crucially   relevant   factor.     The<\/p>\n
Act is not intended to make the tenant lord of the land, as was<\/p>\n
done   in   the   case   of   the   revolutionary   legislation-the   Kerala<\/p>\n
Land   Reforms   Act,   or   deprive   ownership   as   in   the   case   of<\/p>\n
Kerala Private Forests (Vesting and Assignment) Act.   It is not<\/p>\n
intended   to   give   any   fixity   of   tenure.     It   is   intended   only   to<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 61 ::\n<\/p>\n
prevent unreasonable eviction of the tenants.   The Act is also<\/p>\n
not intended to give the tenant any vested right not to be ever<\/p>\n
evicted and to continue eternally in occupation.  The intention<\/p>\n
is only to place some restrictions on the unfettered right of the<\/p>\n
landlord   under   the   common   law   to   evict   his   tenants   at   will.<\/p>\n
The   Act   does   not   contemplate   any   immunity   to   the   tenants<\/p>\n
from eviction.\n<\/p>\n<\/p>\n
                      75.  Section 11(3) of the Act permits the landlord to<\/p>\n
initiate   proceedings   for   eviction   on   the   ground   of   bona   fide<\/p>\n
need, subject to the enumerated further restrictions as per the<\/p>\n
provisos   under   the   sub-section.     However,   Section   11(17),<\/p>\n
despite the provisos, imposes a fetter for ever on eviction for<\/p>\n
bona fide use. In the instant case, we are concerned with the<\/p>\n
lease   of   a   non-residential   premises.     Literally,   Section   11(17)<\/p>\n
would   mean   that   a   tenant   in   continuous   occupation   of   the<\/p>\n
premises   from   1.4.1940   as   a   tenant,   cannot   be   evicted   for<\/p>\n
bona   fide   occupation   of   the   landlord   or   of   the   occupation   of<\/p>\n
any member of the family dependent on him.  Since Section 11<\/p>\n
(3) provides for eviction on the ground of bona fide need, the<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 62 ::\n<\/p>\n
fetter as introduced in Section 11(17)  is  thus an exception to<\/p>\n
Section 11(3).   The simple question is whether such exception<\/p>\n
to   Section   11(3)   as   provided   under   Section   11(17)   giving<\/p>\n
immunity from eviction is available to the heirs of a tenant who<\/p>\n
is   in   continuous   occupation   of   the   building   from   1.4.1940.     If<\/p>\n
the plain meaning of Section 2(6) is followed, the tenant has to<\/p>\n
mean the heirs also.  But it has to be noted that Section 2 itself<\/p>\n
starts   with   the   guarded   provision-“unless   the   context<\/p>\n
otherwise   requires”.     Whether   the   context   of   Section   11(17)<\/p>\n
requires interpretation of the expression tenant to be restricted<\/p>\n
as a personal  privilege   on the  particular  tenant  in  continuous<\/p>\n
occupation from 1.4.1940 is the question.<\/p>\n
                      76.  Once a tenant, always a tenant and for ever, is<\/p>\n
not the concept sought to be introduced under the Act.     The<\/p>\n
Act   is   intended   only   to   prevent   the   mischief   of   unreasonable<\/p>\n
eviction meaning thereby that a tenant is liable to be evicted<\/p>\n
only   in   accordance   with   the   provisions   and   procedure   under<\/p>\n
the Act.   If the literal meaning of the word ‘tenant’ as defined<\/p>\n
under Section 2(6) of the Act is taken, there is no question of<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 63 ::\n<\/p>\n
any   eviction   of   a   tenant   in   occupation   of   non-residential<\/p>\n
premises as a tenant continuously from 1.4.1940 for the bona<\/p>\n
fide need of the landlord since there is no limit as such, on the<\/p>\n
succession   of   heirs   of   the   tenant.     An   Act   intended   to   give<\/p>\n
protection   to   a   tenant   from   unreasonable   eviction   cannot<\/p>\n
comprehend imposition of an unreasonable fetter for ever on a<\/p>\n
landlord from even thinking of eviction on the ground of bona<\/p>\n
fide   need.   That   will   be   repugnant   to   the   purpose   of   the   Act.<\/p>\n
Restriction on the right to evict and not extinction of the right<\/p>\n
to   evict   is   the   purpose.   Perpetuity   of   tenancy   is   not   the<\/p>\n
intention of the legislature while enacting a law on regulation<\/p>\n
of   the   lease   and   prevention   of   unreasonable   eviction.<\/p>\n
Regulation of the lease and not regularisation is the intention<\/p>\n
of the legislature.  Protection from unreasonable eviction is the<\/p>\n
purpose and not eternal protection of the lease.  The court has<\/p>\n
always a duty to strike a balance in such conflicting situations<\/p>\n
by attributing   a just and fair meaning to the context.       It is<\/p>\n
thus the duty of the court to find out the contextual meaning<\/p>\n
of the expression ‘tenant’ as appearing under Section   11(17)<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 64 ::\n<\/p>\n
of the Act.  Since Section 11(17) is an exception to Section 11<\/p>\n
(3)   dealing   with   eviction   on   the   ground   of   bona   fide   need   of<\/p>\n
the landlord, deprivation of that right of the landlord has only<\/p>\n
to be limited to the particular person in continuous occupation<\/p>\n
of   the   tenanted   non-residential   premises   as   a   tenant   from<\/p>\n
1..4..1940.   It is a personal privilege granted to the particular<\/p>\n
tenant     which   cannot   be     inherited   by   the   heirs.       It   is   not<\/p>\n
intended to provide an immunity to the heirs of the tenant in<\/p>\n
eternity     from   eviction,   extinguishing   the   legitimate   hopes   of<\/p>\n
the landlord to have the premises for his  bona fide need.<\/p>\n
                      77. My wisdom, on the reasoning referred to above,<\/p>\n
is   mainly   gathered   from   the   literature   on   Principles   of<\/p>\n
Statutory   Interpretation   by   Justice   G.P.Singh   (Eighth   Edition)<\/p>\n
and also a few celebrated decisions.  According to the learned<\/p>\n
author, “Reference to the Statement of Objects and Reasons is<\/p>\n
permissible   for   understanding   the   background,   antecedent<\/p>\n
state   of   affairs,   the   surrounding   circumstances   in   relation   to<\/p>\n
the statute, and the evil which the statute sought to remedy”.<\/p>\n
As already stated above, when the common law permitted the<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 65 ::\n<\/p>\n
landlords to evict the tenants at their sweet will, the legislature<\/p>\n
thought   of   granting   protection   only   from   the   unreasonable<\/p>\n
eviction,   and   not   perpetuity   of   tenancy.       Even   without<\/p>\n
reference to the statement of objects and reasons also, courts<\/p>\n
may have to make  such an attempt to gather the contextual<\/p>\n
meaning.     To   refer   to   one   of   the   earliest   decisions   on   this<\/p>\n
point, of the Privy Council and to quote Sir George Rankin (ILM<\/p>\n
Cadija Umma v. S.Don Manis Appu, AIR 1939 PC 63 p.65),<\/p>\n
                      “A phrase having been introduced and then defined<\/p>\n
                      the   definition  prima   facie  must   entirely   determine<\/p>\n
                      the   application   of   the   phrase;   but   the   definition<\/p>\n
                      must   itself  be   interpreted   before   it   is   applied,   and<\/p>\n
                      interpreted, in case of doubt  in a sense appropriate<\/p>\n
                      to the phrase defined and to the general purpose of<\/p>\n
                      the enactment”.\n<\/p>\n
\nIn a given situation where the definition of an expression  itself<\/p>\n
is   creating   difficulty     in   giving   effect   to   the   purpose   of<\/p>\n
legislation,   the   expression   will   have   to   be   interpreted   having<\/p>\n
regard to the purpose of the Act.  In other words, a definition is<\/p>\n
not  to   be   read   in   isolation.   In   the   instant   case,   however,  the<\/p>\n
definition clause itself provides that the expression should be<\/p>\n
understood and applied having regard to the context in which<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 66 ::\n<\/p>\n
the   expression   ‘tenant’   appears.     Under   Section   11(17),   the<\/p>\n
context relevant to the case is that of a tenant in continuous<\/p>\n
occupation   of   the   non-residential   premises   from   1.4.1940<\/p>\n
facing   the   threat   of   eviction   on   the   ground   of   the   most<\/p>\n
valuable  right   of  the landlord,   viz.,  bona   fide   own  need.      To<\/p>\n
such   a   valuable   right   only,   a   temporary   check   by   way   of<\/p>\n
exemption   is   given,   a   life   interest,   taking   note   of   the<\/p>\n
occupation  of a  particular  person as a  tenant for  a  long  time<\/p>\n
and   a   specified   date   is   given   as   1.4.1940.   Despite   my<\/p>\n
strenuous  effort  as   to   the  relevance  of   that  date,  I   confess, I<\/p>\n
was not able to gather any significance of that date, even from<\/p>\n
the debates in the Assembly.   Be that as it may, it would only<\/p>\n
mean   a   long,   un-interrupted   occupation   of   a   non-residential<\/p>\n
premises by a person as a tenant.  Though ordinarily a tenant<\/p>\n
is liable to be evicted for the bona fide need of the landlord, in<\/p>\n
the case of the particular person in continuous occupation of a<\/p>\n
premises as a tenant from 1.4.1940, an exception is provided,<\/p>\n
protection from eviction till the end of his life.   That is only a<\/p>\n
personal   privilege   to   the   person   and   not   to   his   heirs,   lest   it<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 67 ::\n<\/p>\n
should   lead   to   perpetuity   of   tenancy,   which   would   be<\/p>\n
repugnant to the purpose of the legislation.<\/p>\n
                      78.  The contention of the revision petitioner is that<\/p>\n
the court should not usurp on the legislative function under the<\/p>\n
guise   of   interpretation.   The   Judges   are   not   expected   to<\/p>\n
interpret statutes in the light of their views on policy matters.<\/p>\n
What is expedient, what is just and what is morally justifiable<\/p>\n
etc.  are   for   the   legislature   to   decide.     I   have   no   quarrel   with<\/p>\n
the well settled position. But that does not mean that Judges<\/p>\n
should not say what the law is   having regard to the purpose<\/p>\n
for which the statute is enacted.  That is not judicial legislation,<\/p>\n
it   is   judicial   function.     While   it   is   to   the   legislature   to   decide<\/p>\n
what the law should be; it is for the Court to say what the law<\/p>\n
means.  To quote Justice G.P.Singh,<\/p>\n
                     “The Courts are warned that they are not entitled to<\/p>\n
                     usurp   legislative   function   under   the   disguise   of<\/p>\n
                     interpretation and that they must avoid the danger<\/p>\n
                     of   an  apriori  determination   of   the   meaning   of   a<\/p>\n
                     provision   based   on   their   own   preconceived   notions<\/p>\n
                     of   ideological   structure   or   scheme   into   which   the<\/p>\n
                     provision   to   be   interpreted   is   somehow   fitted.<\/p>\n
                     Caution is all the more necessary in dealing with the<\/p>\n
                     legislation enacted to give effect to policies that are<\/p>\n
                     subject   of   bitter   public   and   parliamentary<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 68 ::\n<\/p>\n
                     controversy   for   in   controversial   matters   there   is<\/p>\n
                     room   for   differences   of   opinion   as   to   what   is<\/p>\n
                     expedient,   what   is   just   and   what   is   morally<\/p>\n
                     justifiable;   it   is   the   Parliament’s   opinion   in   these<\/p>\n
                     matters   that   is   paramount.     This   only   means   that<\/p>\n
                     Judges cannot interpret statutes in the light of their<\/p>\n
                     views  as   to policy;   but  they  can  adopt   a  purposive<\/p>\n
                     interpretation if they can find in the statute read as<\/p>\n
                     a   whole   or   in   the   material   to   which   they   are<\/p>\n
                     permitted by law to refer as aids to interpretation an<\/p>\n
                     expression   of   Parliament’s   purpose   or   policy.     So<\/p>\n
                     there   is   no   usurpation   of   function   or   danger   when<\/p>\n
                     the   purpose   or   object   of   a   statute   is   derived   from<\/p>\n
                     legitimate   sources   and   the   words   are   given   an<\/p>\n
                     interpretation   which   they   can   reasonably   bear   to<\/p>\n
                     effectuate   that   purpose   or   object.”   (emphasis<\/p>\n
                     supplied)(Chapter I page 17)<\/p>\n
A   mechanical   interpretation   of   the   words   without   bearing   in<\/p>\n
mind the object of the legislation will defeat the purpose of the<\/p>\n
legislation.     In   the   words   of     Krishna   Iyer,   J.,   in  Chairman,<\/p>\n
Board   of   Mining   Examination   and   Chief   Inspector   of<\/p>\n
Mines v. Ramjee (AIR<\/a> 1977 SC 965),<\/p>\n
                     “to be literal in meaning is to see the skin and miss<\/p>\n
                     the   soul.   The   judicial   key   to   construction   is   the<\/p>\n
                     composite   perception   of   the   deha   and   the   dehi   of<\/p>\n
                     the provision.”\n<\/p>\n
\nTo   quote   Chinnappa   Reddy,   J.   in  Reserve   Bank   of   India   v.<\/p>\n
Pearless  General  Finance  and  Investment  Co.  (AIR<\/a> 1987<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 69 ::\n<\/p>\n
SC   1023),  “Interpretation   must   depend   on   the   text   and   the<\/p>\n
context.   They are the bases of interpretation.   One may well<\/p>\n
say   if   the   text   is   the   texture,   context   is   what   gives   colour.<\/p>\n
Neither   can   be   ignored.                                    Both   are   important.       That<\/p>\n
interpretation   is   best   which   makes   the   textual   interpretation<\/p>\n
match the contextual.   A  statute is  best  interpreted when we<\/p>\n
know why it was enacted”(emphasis supplied).   At the risk of<\/p>\n
redundancy, I may state that the statute was enacted only to<\/p>\n
suppress and prevent the mischief of unreasonble eviction and<\/p>\n
not to give permanency of tenancy.  In the matter of intention<\/p>\n
of   the   legislature,   according   to   Justice   G.P.Singh,     the   words<\/p>\n
used by the legislature do not always bear plain meaning and<\/p>\n
even on the plain meaning itself, there could be doubts.   That<\/p>\n
is precisely the situation in the instant case.  In such situations<\/p>\n
of   doubt,   it   is   always   safe   to   have   an   eye   on   the   object   and<\/p>\n
purpose of the statute, or the reason of spirit behind it.<\/p>\n
                      “<\/p>\n
                        Th
\n                           e   intention   of   the   Legislature   thus   assimilates<\/p>\n
                      two aspects: In one aspect it carries the concept of<\/p>\n
                      ‘meaning’, i.e., what the words mean and in another<\/p>\n
                      aspect,   it   conveys   the   concept   of   ‘purpose   and<\/p>\n
                      object’ or the ‘reason and spirit’ pervading through<\/p>\n
                      the statute.  The process of construction, therefore,<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 70 ::\n<\/p>\n
                      combines both literal and purposive approaches.  In<\/p>\n
                      other words the legislative intention i.e., the true or<\/p>\n
                      legal   meaning   of   an   enactment   is   derived   by<\/p>\n
                      considering   the   meaning   of   the   words   used   in   the<\/p>\n
                      enactment in the light of any discernible purpose or<\/p>\n
                      object   which   comprehends   the  mischief   and   its<\/p>\n
                      remedy                   to           which            the         enactment         is<\/p>\n
                      directed.”(Chapter I, page 10)<\/p>\n
                                                                   -x x x x x x –\n<\/p>\n
\n                      ”\n<\/p>\n
                        B
\n                          ut   words   used   by   the   Legislature   do   not   always<\/p>\n
                      bear a plain meaning.  Moreover, judges quite often<\/p>\n
                      differ  on  the issue  whether certain words  are  plain<\/p>\n
                      and   even   when   there   is   an   agreement   that   the<\/p>\n
                      words are plain, difference of opinion may result on<\/p>\n
                      the   question   as   to   what   the   plain   meaning   is.     In<\/p>\n
                      case of doubt, therefore, it is always safe to have an<\/p>\n
                      eye   on   the   object   and   purpose   of   the   statute,   or<\/p>\n
                      reason and spirit behind it.  “I say that we must look<\/p>\n
                      to what the purpose is”, was said by LORD CAIRNS;<\/p>\n
                      and it was observed by SIR JOHN NICHOLL that “the<\/p>\n
                      key   to  the   opening   of   every  law   is   the   reason   and<\/p>\n
                      the spirit of the law”.  This aspect of ‘purpose’ is the<\/p>\n
                      very   foundation   of   the   rule   in   Heydon’s   case<\/p>\n
                      reported   by   LORD   COKE   as   far   back   as   1584.\n<\/p>\n
                      Statutes   “should   be   construed   not   as   theorems   of<\/p>\n
                      Euclid”, said JUDGE LEARNED HAND, “but with some<\/p>\n
                      imagination of the purposes which lie behind them.”<\/p>\n
                      “Each   word,   phrase   or   sentence”   observed<\/p>\n
                      MUKHERJEA   J.   “is   to   be   construed   in   the   light   of<\/p>\n
                      general   purpose of the Act itself”.    In the words of<\/p>\n
                      K.Iyer, J. the interpretative effort “must be illumined<\/p>\n
                      by the goal though guided by the word”. (Chapter I,<\/p>\n
                      Page 12)<\/p>\n
                      79.  It is not always safe to adopt the plain meaning<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 71 ::\n<\/p>\n
of the words in a statute stating that it was the wisdom of the<\/p>\n
legislature.     As   the   learned   author   says,   some   times,   the<\/p>\n
legislature itself, if consulted would say that  they did not even<\/p>\n
comprehend   such   a   situation.                                        To   quote   “In   all   real<\/p>\n
controversies   of   construction   if   it   were   open   to   consult   the<\/p>\n
Legislature   as   to   its   intention,   the   answer   of   most   of   the<\/p>\n
legislators   in   all   probability   will   be:   ‘such   a   problem   never<\/p>\n
occurred to us, solve it as best as you can, consistent with the<\/p>\n
words used, and the purpose indicated by us in the statute'”.<\/p>\n
                      80.   Thus viewed from any angle, it is crystal clear<\/p>\n
that   the   special   privilege   granted   to   a   person   in   continuous<\/p>\n
occupation   of   a   non-residential   premises   as   a   tenant   ever<\/p>\n
since   1.4.1940   is   a   personal   privilege,   not   intended   to   be<\/p>\n
inherited by his heirs, since the context otherwise requires the<\/p>\n
expression to be read and interpreted so.\n<\/p>\n<\/p>\n
                                                                                      Sd\/-\n<\/p>\n
                                                                        KURIAN JOSEPH, JUDGE.\n<\/p>\n
\nBalakrishnan Nair, J.(Dissenting with K.Padmanabhan Nair, J.)<\/p>\n
                      81.  I had the benefit of reading the judgment in draft of my<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 72 ::\n<\/p>\n
learned   brother   K.Padmanabhan   Nair,   J.,   who   was   requested   to   author<\/p>\n
the   main   judgment   on   behalf   of   the   Larger   Bench.       I   consider   it     a<\/p>\n
misfortune  that  I cannot  agree  with  the  conclusions  of my learned  and<\/p>\n
noble  brother.    So, I am constrained  to  render this  separate    judgment.<\/p>\n
The   facts   of   the   case   and   also   the   legal   questions   involved   have   been<\/p>\n
elaborately stated   by my learned brother in his judgment.  Therefore, it<\/p>\n
is   unnecessary   for   me  to   re-state     them.   So,   I   straightaway   proceed   to<\/p>\n
consider     the   point   in   controversy.     The   point   that   arises   for   decision,<\/p>\n
though it is couched   in a slightly different form in the reference order,<\/p>\n
is,   essentially     whether   the   finding   of   the   Full   Bench   of   this   Court   in<\/p>\n
Narayanan   v.   Shalima<\/a>  (2003(2)   KLT   317   FB)   that   the   protection<\/p>\n
conferred   on   a   tenant   under   Section   11(17)   of   the   Kerala   Buildings<\/p>\n
(Lease and Rent Control) Act, 1965 (hereinafter referred to as ‘the Act’)<\/p>\n
against   eviction   under   Section   11(3)   thereof,   is   a   personal   privilege<\/p>\n
which   dies   with   the   death   of   the   original   tenant,   who   has   continuous<\/p>\n
occupation   of   the   tenanted   premises   from   1.4.1940   and   cannot   be<\/p>\n
inherited by his  heirs,  is liable to be upheld.<\/p>\n
                      82.  The term “tenant” has been defined   in Section 2(6) of<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 73 ::\n<\/p>\n
the Act. The said definition reads as follows:<\/p>\n
                      “(6) ‘tenant’ means any person by whom or on whose<\/p>\n
           account rent is payable for a building and includes:–<\/p>\n<\/blockquote>\n
                      (i) the heir or heirs of a deceased tenant, and<\/p>\n<\/blockquote>\n
                      (ii)   a   person   continuing   in   possession   after   the<\/p>\n
           termination   of   the   tenancy   in   his   favour,   but   does   not<\/p>\n
           include a Kudikidappukaran as defined in the Kerala Land<\/p>\n
           Reforms   Act,   1963   (Kerala   Act   1   of   1964),   or   a   person<\/p>\n
           placed   in   occupation   of   a   building   by   its   tenant,   or   a<\/p>\n
           person to whom the collection of rents or fees in a public<\/p>\n
           market, cart-stand or slaughter house or of rents for shops<\/p>\n
           has   been   farmed   out   or   leased   by   a   Municipal   Council,<\/p>\n
           Municipal   Corporation,   Township   Committee   or<\/p>\n
           Panchayat.”\n<\/p><\/blockquote>\n
<\/blockquote>\n
The   Act   came   into   force   with   effect   from   1.4.1965.     At   that   time   the<\/p>\n
word  “tenant” was defined in the following manner:<\/p>\n
                      “‘tenant’   means   any   person   by   whom   or   on   whose<\/p>\n
          account   rent   is   payable   for   a   building   and   includes   the<\/p>\n
          surviving   spouse,   or   any   son   or   daughter,   of   a   deceased<\/p>\n
          tenant who had been living with the tenant in the building<\/p>\n
          as   a   member   of   the   tenant’s   family   upto   the   death   of   the<\/p>\n
          tenant   and   a   person   continuing   in   possession   after   the<\/p>\n
          termination   of   the     tenancy   in   his   favour,   but   does   not<\/p>\n
          include a Kudikidappukaran as defined  in the Kerala Land<\/p>\n
          Refoms   Act,   1963   (Kerala   Act   1   of   1964),   or   a   person<\/p>\n
          placed in occupation of a building by its tenant or a person<\/p>\n
          to whom the collection of rents or fees in a public market,<\/p>\n
          cart-stand or slaughter-house or of rents for shops has been<\/p>\n
          farmed out or leased by a municipal council or local board<\/p>\n
          or Panchayat or Corporation.”\n<\/p><\/blockquote>\n
<\/blockquote>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 74 ::\n<\/p>\n
The  above  quoted  old  definition  only recognized  surviving  spouse  and<\/p>\n
children, who had been living with the tenant as members of his family<\/p>\n
up to his death,  as tenants after the death of the original tenant.  The said<\/p>\n
definition  was substituted  with the present definition  by Act 7 of 1966<\/p>\n
with   effect   from   20.7.1966.     The   new   definition   covers   all     heirs,<\/p>\n
irrespective of whether they are residing as members of the family with<\/p>\n
the tenant or not.  For convenient reference Section 11(17) of the Act is<\/p>\n
quoted below:\n<\/p>\n<\/p>\n
                      “(17)   Notwithstanding   anything   contained   in   this<\/p>\n
          section a tenant who has been in continuous occupation of<\/p>\n
          a   building   from   1st  April   1940   as   a   tenant,   shall   not   be<\/p>\n
          liable   to   be   evicted   for   bona   fide   occupation   of   the<\/p>\n
          landlord or of the occupation by any member of his family<\/p>\n
          dependent on him, provided that a landlord of a residential<\/p>\n
          building   shall   be     entitled   to   evict   such   a   tenant   of   that<\/p>\n
          building if the landlord has been living in a place outside<\/p>\n
          the  city, town  or village in which the building  is  situated<\/p>\n
          for a period of not less than five years before he makes an<\/p>\n
          application   to   the   Rent   Control   Court   for   being   put   in<\/p>\n
          possession of the building, and requires the building bona<\/p>\n
          fide for his own permanent residence or for the permanent<\/p>\n
          residence of any member of his family or the landlord is in<\/p>\n
          dire need of a place for residence and has none of  his own.<\/p><\/blockquote>\n
                      Explanation:–   In   computing   the   period   of<\/p>\n
          continuous  occupation  from 1st  April, 1940, the period, if<\/p>\n
          any,   during   which   the   landlord   was   residing   outside   the<\/p>\n
          city, town or village in which the building is situated shall<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 75 ::\n<\/p>\n
          be excluded.”\n<\/p>\n<\/p>\n
                      83.  Section 11 deals with eviction of tenants.  The various<\/p>\n
sub-sections of the said Section put fetters on the right of the landlord to<\/p>\n
evict tenants.  Section 11(17) casts  a very special type of  disability  on<\/p>\n
the   landlord.     A   tenant   mentioned   under   the   sub-section     cannot   be<\/p>\n
evicted   on   the   ground   available   under   Section   11(3).     Normally,     the<\/p>\n
word “tenant” mentioned in Section 11(17) must include his  heirs also,<\/p>\n
in   view   of   the   definition   of     “tenant”   contained   in   Section   2(6).     Of<\/p>\n
course,   if   the   context   otherwise   requires,   a   meaning   not   given   in   the<\/p>\n
dictionary  of   the  statute  can  be   ascribed   to  the   word  “tenant”.   But,  is<\/p>\n
there   anything   different   in   the   context,   in   which   the   word   “tenant”   is<\/p>\n
used   in   Section   11(17),   so   as   to   discard   the   statutory   meaning   of   that<\/p>\n
word?  Going by the plain language of the said sub-section, I cannot find<\/p>\n
anything   in   the   context,   which   compels   one   to   attribute   a   different<\/p>\n
meaning to the word “tenant”.   When the words of the statute are plain<\/p>\n
and   clear,   the   court   should   give   effect   to   the   literal     meaning   of   the<\/p>\n
statute.  That is the first and foremost rule of interpretation.  Maxwell on<\/p>\n
Interpretation of Statutes (12th  Edition, page 28), deals with the concept<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 76 ::\n<\/p>\n
of literal construction in the following words:<\/p>\n
                      “The first   and most elementary rule of construction<\/p>\n
           is  that   it   is   to   be   assumed   that   the   words   and   phrases   of<\/p>\n
           technical legislation are  used in their technical meaning if<\/p>\n
           they   have   acquired   one,   and   otherwise   in   their   ordinary<\/p>\n
           meaning, and the second is that the  phrases and sentences<\/p>\n
           are   to   be   construed   according   to   the   rules   of     grammar.<\/p><\/blockquote>\n
           ‘The length and detail of modern  legislation,’ wrote   Lord<\/p>\n
           Evershed   M.R.,   ‘has   undoubtedly   reinforced   the   claim   of<\/p>\n
           literal   construction   as   the   only   safe   rule.’    If   there   is<\/p>\n
           nothing to modify,  alter or qualify the language which the<\/p>\n
           statute contains, it must be   construed in the ordinary and<\/p>\n
           natural   meaning   of   the   words   and   sentences.     ‘The   safer<\/p>\n
           and   more   correct   course   of   dealing   with   a   question   of<\/p>\n
           construction  is to take the  words themselves and  arrive if<\/p>\n
           possible   at   their   meaning   without,   in   the   first   instance,<\/p>\n
           reference to cases.” (Emphasis supplied)<\/p>\n
                      84.     In   Craies   on   Statute   Law   (7th  Edition,   page   65),   it   is<\/p>\n
stated that<\/p>\n
           “Where   the   language   of   an   Act   is   clear   and   explicit,   we<\/p>\n
           must give effect to it, whatever may be the consequences,<\/p>\n
           for in that case the words of the statute speak the intention<\/p>\n
           of the legislature.”\n<\/p>\n<\/p>\n
                      85.     The   learned   author   Justice   G.P.   Singh   in   his   book<\/p>\n
“Principles   of   Statutory   Interpretation”   (8th  Edition,   page   11-12)   deals<\/p>\n
with the literal rule, which is a cardinal principle of construction in the<\/p>\n
following words:\n<\/p>\n<\/p>\n
                      “In   all   ordinary   cases   and   primarily   the   language<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 77 ::\n<\/p>\n
           employed is the determining factor of  intention.  ‘The first<\/p>\n
           and            primary                rule            of          construction’,         said<\/p>\n
           GAJENDRAGADKAR,   J.   ‘is   that   the   intention   of   the<\/p>\n
           Legislature   must   be   found   in   the   words   used   by   the<\/p>\n
           Legislature   itself.’     The   question   is   not   what   may   be<\/p>\n
           supposed to have been intended but what has been  said.  ‘I<\/p>\n
           do   not   care   what  their  intention   was,’  said   Mr.   JUSTICE<\/p>\n
           HOLMES in a letter: ‘I only want to know what the words<\/p>\n
           mean.’  LORD BROUGHAM has more emphatically stated<\/p>\n
           the importance of the text of the   statute in the following<\/p>\n
           words:   ‘If the Legislature did intend that which it has not<\/p>\n
           expressed  clearly; much more, if  the Legislature intended<\/p>\n
           something very different; if the Legislature intended pretty<\/p>\n
           nearly the opposite of what is said, it is not for judges  to<\/p>\n
           invent something which they do not meet within the words<\/p>\n
           of the text (aiding their construction of the text always, of<\/p>\n
           course,   by   the   context).’     These     and   like   opinions   lay<\/p>\n
           stress     on   one   aspect   of   intention,   i.e.,   what   the   words<\/p>\n
           mean; and undoubtedly to the extent the ‘referent’ is clearly<\/p>\n
           indicated  and the words have a ‘plain’ meaning, the courts<\/p>\n
           are   not   to   busy   themselves   with   ‘supposed   intention’   or<\/p>\n
           with   ‘the   policy   underlying   the   statute’.”  (Emphasis<\/p>\n
           supplied)<\/p>\n
                      86.     Recently,   the   Hon’ble   Supreme   Court   in  Raghunath<\/p>\n
Rai   Bareja   v.   Punjab   National   Bank<\/a>  (2006   AIR   SCW   6446),   while<\/p>\n
interpreting   Section   31   of   the   Recovery   of   Debts   Due   to   Banks   and<\/p>\n
Financial   Institutions   Act,   has   marshalled   the   decisions   on   literal<\/p>\n
interpretation   exhaustively   and   explained   the   said   concept     in   the<\/p>\n
following words:\n<\/p>\n
\nC.R.P.NO.2012\/01<\/p>\n
                                                            :: 78 ::\n<\/p>\n
                      “39.   In M\/s.  Hiralal Ratanlal  vs.  STO, AIR 19173<\/p>\n
           SC 1034, this Court observed:\n<\/p>\n
                      ‘In   construing   a   statutory   provision   the   first   and<\/p>\n
           foremost   rule   of   construction   is   the   literary   construction.<\/p>\n
           All that the Court has to see at the very outset is what does<\/p>\n
           the provision say.   If the provision is unambiguous and if<\/p>\n
           from the provision the legislative intent is clear, the Court<\/p>\n
           need   not   call   into   aid   the   other   rules   of   construction   of<\/p>\n
           statutes. The other rules of construction are called into aid<\/p>\n
           only when the legislative intent is not clear.’<\/p>\n
                      40.  It may be  mentioned in this connection that the<\/p>\n
           first and foremost principle of   interpretation   of a statute<\/p>\n
           in   every   system   of   interpretation     is   the   literal   rule   of<\/p>\n
           interpretation.     The   other   rules   of   interpretation   e.g.,   the<\/p>\n
           mischief   rule,   purposive   interpretation   etc.,   can   only   be<\/p>\n
           resorted   to   when   the   plain   words   of   a   statute   are<\/p>\n
           ambiguous   or   lead   to   no   intelligible   results   or   if   read<\/p>\n
           literally   would   nullify   the   very   object   of   the   statute.<\/p>\n
           Where   the   words   of   a   statute   are   absolutely   clear   and<\/p>\n
           unambiguous, recourse  cannot be had to the principles  of<\/p>\n
           interpretation   other   than   the   literal   rule,  vide   Swedish<\/p>\n
           Match AB vs. Securities  and Exchange Board India, AIR<\/a><\/p>\n
           2004   SC   4219.     As   held   in   Prakash   Nath   Khanna   vs.<\/p>\n
           C.I.T.,   2004(9)   SCC   686,   the   language   employed     in   a<\/p>\n
           statute is the determinative factor of the legislative intent.<\/p>\n
           The legislature is presumed  to have made no mistake. The<\/p>\n
           presumption   is   that   it   intended   to   say   what   it   has   said.<\/p>\n
           Assuming   there   is   a   defect   or   an   omission   in   the   words<\/p>\n
           used by the  legislature, the  Court  cannot  correct  or make<\/p>\n
           up the deficiency, especially when a literal reading  thereof<\/p>\n
           produces   an   intelligible   result,  vide   Delhi   Financial<\/p>\n
           Corporation vs. Rajiv  Anand,<\/a> 2004(11) SCC  625.  Where<\/p>\n
           the legislative intent is clear from the language, the Court<\/p>\n
           should   given   effect     to   it,   vide   Government   of   Andhra<\/p>\n
           Pradesh   vs.     Road   Rollers   Owners   Welfare   Association,<\/p>\n
C.R.P.NO.2012\/01<\/a><\/p>\n
                                                            :: 79 ::\n<\/p>\n
           2004(6) SCC 210, and the Court should not seek to amend<\/p>\n
           the law in the garb of interpretation.\n<\/p>\n<\/p>\n
                      41.     As   stated   by   Justice   Frankfurter   of   the   U.S.<\/p>\n
           Supreme   Court   (see   ‘Of   Law   &   Men   :   Papers   and<\/p>\n
           Addresses of Felix Frankfurter’)<\/p>\n
                      ‘Even within their area of choice the courts are not at<\/p>\n
           large.    They  are  confined  by  the   nature   and  scope   of  the<\/p>\n
           judicial   function   in   its   particular   exercise   in   the   field   of<\/p>\n
           interpretation. They are under  the constraints  imposed  by<\/p>\n
           the   judicial   function   in     our   democratic   society.     As   a<\/p>\n
           matter of verbal  recognition certainly, no one will gainsay<\/p>\n
           that the function in construing  a statute is to ascertain the<\/p>\n
           meaning of words used by the legislature.  To go beyond it<\/p>\n
           is to usurp a power  which our democracy has lodged in its<\/p>\n
           elected   legislature.     The   great   judges   have   constantly<\/p>\n
           admonished   their     brethren   of   the   need   for   discipline   in<\/p>\n
           observing   the   limitations.   A   judge   must   not   rewrite   a<\/p>\n
           statute,   neither   to   enlarge   nor   to   contract   it.  Whatever<\/p>\n
           temptations   the   statesmanship   of   policy-making   might<\/p>\n
           wisely   suggest,   construction   must   eschew     interpolation<\/p>\n
           and evisceration.  He must not read in by way of creation.<\/p>\n
           He must  not  read  out  except  to   avoid  patent  nonsense  or<\/p>\n
           internal contradiction.’<\/p>\n
                      42.    As  observed  by Lord  Granworth in  Grundy v.<\/p>\n
           Pinniger, (1852)1 LJ Ch 405:\n<\/p>\n<\/p>\n
                      ‘To   adhere   as   closely   as   possible   to   the   literal<\/p>\n
           meaning of the words used, is a cardinal rule from which if<\/p>\n
           we depart  we launch  into  a sea  of difficulties  which  it is<\/p>\n
           not easy to fathom.’<\/p>\n
                      43.   In other words, once we depart from the literal<\/p>\n
           rule,   then   any   number   of   interpretations   can   be   put   to   a<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 80 ::\n<\/p>\n
           statutory provision, each Judge having a free play to   put<\/p>\n
           his   own   interpretation   as   he   likes.    This   would   be<\/p>\n
           destructive   of   judicial   discipline,   and   also   the   basic<\/p>\n
           principle   in   a   democracy   that   it   is   not   for   the   Judge   to<\/p>\n
           legislate as that is the task of the elected representatives of<\/p>\n
           the   people.  Even   if   the   literal   interpretation   results   in<\/p>\n
           hardship   or   inconvenience,   it   has   to   be   followed   (see<\/p>\n
           G.P.Singh’s Principles of Statutory Interpretations, 9th Edn.<\/p>\n
           Pp   45-49).     Hence   departure   from   the   literal   rule   should<\/p>\n
           only be done in very rare cases, and ordinarily there should<\/p>\n
           be judicial restraint in this connection.<\/p>\n
                      44.     As   the   Privy   Council   observed   (per   Viscount<\/p>\n
           Simonds, L.C.):\n<\/p>\n<\/p>\n
                      ‘Again   and   again,   this   Board   has   insisted   that   in<\/p>\n
           construing    enacted words we are not concerned with the<\/p>\n
           policy involved or with the results,  injurious or otherwise,<\/p>\n
           which may follow from giving effect to the language used.’<\/p>\n
           (see   Emperor   v.   Benoarilal   Sarma,   AIR   1945   PC   48,<\/p>\n
           pg.53)<\/p>\n
                      45.     As   observed   by   this   Court   in   CIT   vs.   Keshab<\/p>\n
           Chandra Mandal, AIR<\/a> 1950 SC 265:\n<\/p>\n<\/p>\n
                      ‘Hardship or inconvenience cannot alter the meaning<\/p>\n
           of   the   language   employed   by   the   Legislature   if   such<\/p>\n
           meaning is clear on the face of the statute.’<\/p>\n
                      46.  The rules of interpretation  other than the literal<\/p>\n
           rule would come into play only if there is any doubt with<\/p>\n
           regard   to   the   express   language     used   or   if   the   plain<\/p>\n
           meaning would lead to an absurdity.  Where the words are<\/p>\n
           unequivocal,   there   is   no   scope   for   importing   any   rule   of<\/p>\n
           interpretation vide Pandian Chemicals Ltd. vs. C.I.T., 2003<\/p>\n
           (5) SCC  590.\n<\/p>\n
\nC.R.P.NO.2012\/01<\/p>\n
                                                            :: 81 ::\n<\/p>\n<\/p>\n
                      47.    It  is only where the provisions  of a statute are<\/p>\n
           ambiguous that the Court can depart from a literal or strict<\/p>\n
           construction  vide  Nasiruddin  vs.  Sita Ram Agarwal, AIR<\/a><\/p>\n
           2003 SC 1543.  Where the words of a statute are plain and<\/p>\n
           unambiguous effect must be given  to them vide Bhaiji vs.<\/p>\n
           Sub-Divisional Officer, Thandla,<\/a> 2003(1) SCC 692).<\/p>\n
                      48.    No  doubt  in  some exceptional  cases  departure<\/p>\n
           can be made from the literal rule of  the interpretation, e.g.,<\/p>\n
           by adopting a  purposive construction,  Heydon’s mischief<\/p>\n
           rule, etc., but that should only be done in very exceptional<\/p>\n
           cases.    Ordinarily it  is not  proper  for  the  Court  to depart<\/p>\n
           from the literal  rule as that would really be amending the<\/p>\n
           law in the garb of interpretation, which is not permissible,<\/p>\n
           vide  J.P.Bansal  vs.  State  of Rajasthan  & Anr., AIR<\/a> 2003<\/p>\n
           SC 1405, State of Jharkhand & Anr. vs. Govind Singh, JT<\/a><\/p>\n
           2004(10) SC 349 etc.  It is for the legislature to amend the<\/p>\n
           law and not the Court, vide  State of Jharkhand & Anr. vs.<\/p>\n
           Govind Singh, JT<\/a> 2004 (10) SC 349.   In Jinia Keotin vs.<\/p>\n
           K.S. Manjhi,<\/a> 2003(1) SCC 730, this Court observed:<\/p>\n
                      ‘The Court  cannot  legislate………. under  the garb  of<\/p>\n
           interpretation….”\n<\/p>\n
\n           Hence there should be judicial restraint in this connection,<\/p>\n
           and   the   temptation   to   do   judicial   legislation   should   be<\/p>\n
           eschewed by the Courts.   In fact, judicial legislation is an<\/p>\n
           oxymoron.\n<\/p>\n<\/p>\n
                      49.     In   Shiv   Shakti   Co-operative   Housing   Society<\/p>\n
           vs.   Swaraj   Developers,   AIR<\/a>   2003   SC   2434,   this   Court<\/p>\n
           observed:\n<\/p>\n<\/p>\n
                      ‘It is  a  well  settled  principle    in  law  that  the Court<\/p>\n
           cannot   read   anything   into   a   statutory   provision   which   is<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 82 ::\n<\/p>\n
           plain   and   unambiguous.     A   statute   is   an   edict   of   the<\/p>\n
           legislature.     The   language   employed   in   a   statute   is   the<\/p>\n
           determinative factor of legislative intent.’<\/p>\n
                      50.     In   our   opinion,   Section   31   is   plain   and<\/p>\n
           unambiguous   and   it   clearly   says   that   only   those   suits   or<\/p>\n
           proceedings pending before a Court shall stand transferred<\/p>\n
           to the Tribunal which were pending on the date when the<\/p>\n
           Tribunal was established.\n<\/p>\n<\/p>\n
                      51.     The   learned   counsel   for   the   respondent<\/p>\n
           submitted  that  we have  to see  the  legislative  intent  when<\/p>\n
           we interpret Section 31.  In our opinion, resort can be had<\/p>\n
           to   the   legislative   intent   for   the   purpose   of   interpreting   a<\/p>\n
           provision   of   law   when   the     language   employed   by   the<\/p>\n
           legislature   is   doubtful   or   ambiguous   or   leads   to   some<\/p>\n
           absurdity.     However,   when   the   language   is   plain   and<\/p>\n
           explicit and does not admit of any doubt, the Court  cannot<\/p>\n
           by   reference   to   an   assumed   legislative   intent   expand   or<\/p>\n
           alter the plain meaning of an expression employed by the<\/p>\n
           legislature,  vide  Ombalika  Das   vs.  Hulisa  Shaw,<\/a>  2002(4)<\/p>\n
           SCC 539.\n<\/p>\n<\/p>\n
                      52.  Where the language is clear, the intention of the<\/p>\n
           legislature has to be gathered from the language used vide<\/p>\n
           Grasim Industries Limited vs. Collector of Customs,<\/a> 2002<\/p>\n
           (4) SCC 297 and Union of India vs. Hamsoli Devi,<\/a> 2002<\/p>\n
           (7) SCC 273.\n<\/p>\n<\/p>\n
                      53.  In Union of India and another vs. Hansoli Devi<\/p>\n
           and   others,   2002(7)   SCC   273   (vide   para   9),   this   Court<\/p>\n
           observed:\n<\/p>\n<\/p>\n
                      ‘It is a cardinal principle of construction of a statute<\/p>\n
           that   when   the   language   of   the   statute   is   plain   and<\/p>\n
           unambiguous, then the court must give effect to the words<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 83 ::\n<\/p>\n
           used in the statute and it would not be open to the courts to<\/p>\n
           adopt a hypothetical construction on the grounds that such<\/p>\n
           construction is more consistent with the alleged object and<\/p>\n
           policy of the Act.’<\/p>\n
                      54.  The function of the Court is only to expound the<\/p>\n
           law and  not    to  legislate  vide  District  Mining  Officer  vs.<\/p>\n
           Tata  Iron  and  Steel  Company,<\/a> 2002(7)   SCC 358.    If we<\/p>\n
           accept the interpretation canvassed by the learned counsel<\/p>\n
           for the respondent we will really be legislating because in<\/p>\n
           the   guise   of   interpretation   we   will   be   really   amending<\/p>\n
           Section 31.\n<\/p>\n<\/p>\n
                      55.   In Gurudevdatta VKSSS Maryadit   vs. State of<\/p>\n
           Maharashtra, AIR<\/a> 2001 SC 1980, this Court observed:<\/p>\n
                      ‘It is a cardinal principle of interpretation of statute<\/p>\n
           that   the   words   of   a   statute   must   be   understood   in   their<\/p>\n
           natural, ordinary or popular sense and construed according<\/p>\n
           to   their   grammatical   meaning,   unless     such   construction<\/p>\n
           leads to some absurdity or unless there is something in the<\/p>\n
           context   or   in   the   object   of   the   statute   to   suggest   to     the<\/p>\n
           contrary.     The   golden   rule   is   that   the   words   of   a   statute<\/p>\n
           must prima facie  be  given    their  ordinary meaning.    It is<\/p>\n
           yet  another     rule   of   construction   that   when   the   words   of<\/p>\n
           the   statute   are   clear,   plain   and   unambiguous,   then   the<\/p>\n
           Courts   are   bound   to   give   effect   to   that   meaning,<\/p>\n
           irrespective of the consequences.  It is said that the words<\/p>\n
           themselves best declare the intention of the law-giver.  The<\/p>\n
           Courts are adhered to the   principle that efforts should be<\/p>\n
           made to give meaning to each and every word used by the<\/p>\n
           legislature and it is not a sound principle of construction to<\/p>\n
           brush   aside   words   in   a   statute   as   being   inapposite<\/p>\n
           surpluses,   if   they   can   have   a   proper   application   in<\/p>\n
           circumstances conceivable within the contemplation of the<\/p>\n
           statute’.\n<\/p>\n
\nC.R.P.NO.2012\/01<\/p>\n
                                                            :: 84 ::\n<\/p>\n<\/p>\n
                      56.  The same view has been taken by this Court in<\/p>\n
           S. Mehta vs. State of Maharashtra, 2001(8) SCC 257 (vide<\/p>\n
           para   34)   and   Patangrao   Kaddam   vs.   Prithviraj   Sajirao<\/p>\n
           Yadav Deshmugh, AIR<\/a> 2001 SC 1121.\n<\/p>\n<\/p>\n
                      57.    The   literal   rule   of   interpretation   really   means<\/p>\n
           that there should be no interpretation.  In other words, we<\/p>\n
           should   read   the   statute   as   it   is,   without   distorting   or<\/p>\n
           twisting its language.\n<\/p>\n<\/p>\n
                      58.     We   may   mention   here   that   the   literal   rule   of<\/p>\n
           interpretation is not only followed by Judges and lawyers,<\/p>\n
           but  it is  also followed by the layman in his ordinary life.<\/p>\n
           To  give  an  illustration,  if   a  person  says  ‘this  is  a  pencil’,<\/p>\n
           then he means that it is a pencil; and it is not that when he<\/p>\n
           says that the object is a pencil, he means that it is a horse,<\/p>\n
           donkey or an elephant.   In other words, the literal rule of<\/p>\n
           interpretation simply means that we mean what we say and<\/p>\n
           we say what we mean.   If we do not follow the literal rule<\/p>\n
           of  interpretation,   social life will become impossible, and<\/p>\n
           we will not understand each other.  If we say that a certain<\/p>\n
           object is a book then we mean it is a book. If we say it is a<\/p>\n
           book, but we mean it is a horse, table or an elephant, then<\/p>\n
           we  will not be able to communicate with each other.  Life<\/p>\n
           will become impossible.  Hence, the meaning of the literal<\/p>\n
           rule of interpretation is simply that we mean what we say<\/p>\n
           and we say what we mean.”(Emphasis supplied)<\/p>\n
In the light of the above principles, we may now attempt to understand<\/p>\n
the   scope   of   Section   11(17).     Going   by   the  plain   language   of   the   said<\/p>\n
Section, on the conditions therein being satisfied, a landlord cannot evict<\/p>\n
his   tenant   who   was   in   continuous   occupation   from     1.4.1940   and   his<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 85 ::\n<\/p>\n
heirs,  under Section 11(3).  This is the plain meaning of the provisions<\/p>\n
in  Section  11(17).     I   feel   that  we  need   venture  to   go   after  some  other<\/p>\n
intention   of   the   legislature,  if   only   the   words   of   the   statute   are   in   any<\/p>\n
way ambiguous.\n<\/p>\n<\/p>\n
                      87.  We may attribute a different meaning from the ordinary<\/p>\n
meaning, if the giving effect to the latter, results in absurdity.  The said<\/p>\n
rule is called the golden rule.  Maxwell in Interpretation of Statutes (12th<\/p>\n
Edition, page 43), explains the concept of   golden rule in the following<\/p>\n
words:\n<\/p>\n<\/p>\n
                      “The so-called ‘golden rule’ is really a modification<\/p>\n
          of the literal rule.  It was stated in this way by Parke B.:  ‘It<\/p>\n
          is   a   very   useful   rule,   in   the   construction   of   a   statute,   to<\/p>\n
          adhere to the ordinary meaning of the words used, and to<\/p>\n
          the   grammatical   construction,   unless   that     is   at   variance<\/p>\n
          with the intention of the legislature, to be collected   from<\/p>\n
          the   statute   itself,   or   leads   to   any   manifest   absurdity   or<\/p>\n
          repugnance,  in which case the language may be varied or<\/p>\n
          modified,   so   as   to   avoid   such   inconvenience,   but   no<\/p>\n
          further.’  ‘If,’ said Brett L.J.,  ‘the inconvenience is not only<\/p>\n
          great,   but   what   I   may  call   an   absurd     inconvenience,   by<\/p>\n
          reading an enactment in its ordinary sense, whereas if you<\/p>\n
          read   it in a manner in which it is capable, though not its<\/p>\n
          ordinary   sense,   there   would   not   be   any   inconvenience   at<\/p>\n
          all,   there   would   be   reason   why   you   should   not   read   it<\/p>\n
          according   to   its   ordinary   grammatical   meaning.'”<\/p><\/blockquote>\n
          (Emphasis supplied)<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 86 ::\n<\/p>\n<\/p>\n
                         88.  In ‘Principles of Statutory Interpretation’ by Justice G.P.<\/p>\n
Singh (8th  Edition, page 74-75), the concept of golden rule is dealt with<\/p>\n
in the following manner:\n<\/p>\n<\/p>\n
                         “VISCOUNT SIMON, L.C., said : ‘The golden rule<\/p>\n
           is  that  the  words  of  a statute    must  prima  facie  be  given<\/p>\n
           their  ordinary meaning’.  Natural and ordinary meaning of<\/p>\n
           words   should   not   be     departed   from     ‘unless     it   can   be<\/p>\n
           shown that the legal  context  in which the words are used<\/p>\n
           requires  a different meaning’.   Such a meaning cannot be<\/p>\n
           departed   from   by   the   judges   ‘in   the   light   of   their   own<\/p>\n
           views   as   to   policy’   although   they   can   ‘adopt   a   purposive<\/p>\n
           interpretation if they can find in the statute read as a whole<\/p>\n
           or in material to which they are  permitted by law to  refer<\/p>\n
           as   aids   to   interpretation   an   expression   of   Parliament’s<\/p>\n
           purpose   or     policy’.     For   a   modern   statement   of   the   rule<\/p>\n
           one   may   refer   to   the   speech   of   LORD   SIMON   OF<\/p>\n
           GLAISDALE in a recent case where he said: ‘Parliament is<\/p>\n
           prima facie to be credited with meaning what is said in an<\/p>\n
           Act of Parliament.   The drafting of statutes, so important<\/p>\n
           to  a   people   who  hope   to   live  under  the  rule  of   law,   will<\/p>\n
           never be satisfactory unless courts seek whenever possible<\/p>\n
           to  apply ‘the  golden rule’ of   construction, that  is to  read<\/p>\n
           the            statutory               language,                  grammatically         and<\/p>\n
           terminologically, in the ordinary and primary sense which<\/p>\n
           it  bears   in  its   context,   without  omission   or   addition.     Of<\/p>\n
           course,   Parliament   is   to   be   credited   with   good   sense;   so<\/p>\n
           that when  such an approach produces injustice, absurdity,<\/p>\n
           contradiction   or   stultification   of   statutory   objective   the<\/p>\n
           language   may   be   modified   sufficiently   to   avoid   such<\/p>\n
           disadvantage, though no further”.<\/p><\/blockquote>\n
                         89.  Whether giving effect to the plain meaning will result in<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 87 ::\n<\/p>\n
gross  absurdity or repugnance, is to be ascertained with reference to the<\/p>\n
words employed in the statute.   I feel that  such  a contention  cannot  be<\/p>\n
advanced   or   accepted,   having   regard   to   the   scheme     of   the   present<\/p>\n
statute.   The   denial   of   right   to   a   landlord   for   eviction,   on   a   particular<\/p>\n
ground,   of a tenant having certain special attributes can, in no way, be<\/p>\n
said   to   be   generating   absurd   results.     The   State     legislature   has   given<\/p>\n
birth to several  legislations,  from Land  Reforms Act to  Private  Forests<\/p>\n
(Vesting   and   Assignment)   Act,   impinging   upon   the   right   to   property.<\/p>\n
Many   have   been   deprived   of   their   rights   over   lands     and   many   with<\/p>\n
limited  title  over  them   were  made  owners  of the  property.   These  are<\/p>\n
matters,  which come within the competence of the State legislature.  The<\/p>\n
“rights in or over land, including the relation between the landlord and<\/p>\n
the tenant” come under item 18 of  List II of the seventh schedule of the<\/p>\n
Constitution of India.  “Transfer of property other than agricultural land”<\/p>\n
comes under entry 6 of List III.   When a legislature is  legislating on a<\/p>\n
subject, it need not confine  to a particular legislative  entry.   It can fall<\/p>\n
back   on   all   the   entries,   enabling   it   to   legislate.     In   other   words,   one<\/p>\n
legislation  need not  be a watertight  compartment containing  provisions<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 88 ::\n<\/p>\n
only   on   one   subject.     So,   if   the   legislature,   while   legislating   on   rent<\/p>\n
control   and   eviction,   grants   limited   immunity   from   eviction,   of   a<\/p>\n
permanent nature, the same  cannot be described as without competence.<\/p>\n
See the relevant portion of Section 106 of the Kerala Land Reforms Act,<\/p>\n
which reads as follows:\n<\/p>\n<\/p>\n
                      “106.     Special   provisions   relating   to   leases   for<\/p>\n
           commercial     or   industrial   purposes.–(1)   Notwithstanding<\/p>\n
           anything  contained  in this  Act, or in  any other law,  or in<\/p>\n
           any contract, or in any order or decree of court, where on<\/p>\n
           any  land  leased  for  commercial  or  industrial  purpose,  the<\/p>\n
           lessee   has   constructed   buildings   for   such   commercial   or<\/p>\n
           industrial purpose before the 20th  May, 1967, he shall not<\/p>\n
           be liable to be evicted from such land,   but shall be liable<\/p>\n
           to  pay   rent   under   the   contract   of   tenancy,  and     such   rent<\/p>\n
           shall be liable to be varied every twelve years.<\/p>\n<\/blockquote>\n
                      Explanation.–For the purposes of this section,–<\/p>\n<\/blockquote>\n
                      (a)   ‘lessee’   includes   a   legal   representative   or   an<\/p>\n
           assignee of the lessee; and<\/p>\n<\/blockquote>\n
                      (b)   ‘building’   means   a   permanent   or   a   temporary<\/p>\n
           building and includes a shed.\n<\/p><\/blockquote>\n
<\/blockquote>\n
                      (1A)   The   lessor   or   the   lessee   may   apply   to   such<\/p>\n
           authority as may be prescribed for varying the rent referred<\/p>\n
           to   in   sub-section   (1),   and   thereupon   such   authority   may,<\/p>\n
           after   taking     into   consideration   such   matters   as   may   be<\/p>\n
           prescribed   and   after   giving   the   lessor   and   the   lessee   an<\/p>\n
           opportunity   of   being   heard,   pass   such   orders   on   the<\/p>\n
           application as it deems fit.”\n<\/p><\/blockquote>\n
<\/blockquote>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 89 ::\n<\/p>\n
By the  above provision, a   tenant  of commercial  premises,  whose case<\/p>\n
should   come   under   the   Rent   Control   legislation,   has   been   dealt   with<\/p>\n
under the Land Reforms legislation and given protection from eviction.<\/p>\n
No one has a case that Section 11(17) is unconstitutional.   Therefore, it<\/p>\n
is unnecessary for this Court to read down the said provision, to save it<\/p>\n
from the alleged unconstitutionality.\n<\/p>\n<\/p>\n
                      90.     The   manifest   reason   for   condemnation   of   Section   11<\/p>\n
(17)     is   that   it   creates     a   perpetual   tenancy,   so   far   as   non-residential<\/p>\n
buildings  are concerned.   So, it runs  counter  to  the avowed  object  and<\/p>\n
policy   of   the   Act,   which   is   protection   from   unreasonable   eviction,<\/p>\n
according to the landlord.  So, the interpretation sought to be placed  by<\/p>\n
the petitioner on the word  “tenant”  in the said Section  is repugnant to<\/p>\n
the   object   of   the   legislation,   it   is   pointed   out.     But,   there   is   another<\/p>\n
provision in the Act, which creates, practically, perpetual tenancy.   See<\/p>\n
Section 11(11), which reads as follows:\n<\/p>\n<\/p>\n
                      “(11)   Notwithstanding   anything   contained   in   sub-<\/p>\n
          sections (1) to (10), no order for eviction or for putting the<\/p>\n
          landlord in possession, shall be passed:–<\/p>\n<\/blockquote>\n
                      (i) …………………………………………………….<\/p>\n<\/blockquote>\n
                      (ii) in respect of any building which has been let for<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 90 ::\n<\/p><\/blockquote>\n
\n
          use as an educational institution, and is actually being used<\/p>\n
          as such,  provided  that the  institution  has  been  recognised<\/p>\n
          by the Government or any authority empowered by them in<\/p>\n
          this behalf, so long as such recognition continues.”<\/p>\n<\/blockquote>\n
A   building,   even   if   it   is   let   out   recently   for   use   as   an   educational<\/p>\n
institution,   which   has   recognition   from   the   competent   authority,   can<\/p>\n
never be evicted,  as long as the user of the building is not changed and<\/p>\n
the   recognition   remains   in   force.     In   the   case   of   a   non-residential<\/p>\n
building  covered  by Section  11(17), the landlord  can hope  to  evict the<\/p>\n
heir, who is not  in “occupation”, that is, who is not physically present.<\/p>\n
Heirs in “possession” but not in “occupation” will not get the protection<\/p>\n
of Section 11(17).   But, Section 11(11)(ii) creates, practically, absolute<\/p>\n
fetter on the right of the landlord for eviction.   For that reason, can the<\/p>\n
words   of   that   provision   be   read   down   to   mean   that   the   protection<\/p>\n
available under that provision will die with the original tenant?   In my<\/p>\n
humble   view,   the   answer   can   only   be   an   emphatic   ‘no’.     If   such<\/p>\n
protection   can be granted   to a tenant – School,   why not grant it to a<\/p>\n
tenant\/his   heir,   who   was   in   long   occupation   of   a   non-residential<\/p>\n
building.  I find no convincing reason  to deny the protection sought.<\/p>\n
                      91.  While interpreting a statute, this Court may not venture<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 91 ::\n<\/p>\n
to legislate.  It is not authorized by the Constitution to amend or modify<\/p>\n
a   statute   according   to   its   notions   of   fairness   and   justice.     Even   if,   by<\/p>\n
giving   effect   to   the   plain   meaning   of   a   statute,     unjust   results   are<\/p>\n
generated,  it  is  for  the  legislature  to  take  care  of the  same and not  the<\/p>\n
courts.     Courts   are   answerable   only   to   law   and   God.     They   are   not<\/p>\n
answerable   to   the   public   or   to   the   legislature.     So,   this   Court   will   be<\/p>\n
doing   violence   to   the   constitutional   limitations,   if   it   starts   legislating.<\/p>\n
Ours is a Government of the people and not of the courts.   It is for the<\/p>\n
legislature to say what should be the law.  The  court is normally called<\/p>\n
upon to say what was the law in a past transaction.  It is true, it is for the<\/p>\n
courts to say what the law means,  but they have to say it ‘according  to<\/p>\n
rules of reason and justice’ and ‘not according to private opinion’.  If, in a<\/p>\n
litigation between two parties, this Court is going to amend a legislation,<\/p>\n
the   people   will   lose   their   right   to   self   determination,   as   to   what   laws<\/p>\n
should govern them.  Abraham Lincoln in his first inaugural speech said:<\/p>\n
                      “The candid citizen must confess   that if the policy<\/p>\n
           of   the   Government   upon   vital   questions   is   to   be<\/p>\n
           irrevocably   fixed   by   decisions   of   Supreme   Court,     the<\/p>\n
           instant   they   are   made   in   ordinary   litigations   between<\/p>\n
           parties in personal actions,  the people will have ceased to<\/p>\n
           be   their   own   rulers,   having   to   that   extent,   practically<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 92 ::\n<\/p><\/blockquote>\n
\n
           resigned   their   own     Government   into   the   hands   of   that<\/p>\n
           eminent tribunal.”\n<\/p><\/blockquote>\n
<\/blockquote>\n
                      92.     Ours   is   a   democratic   country   with   a   system   of<\/p>\n
‘responsible’   Government.     A   Government   which   is   answerable   to   the<\/p>\n
legislature   and   can   hold   office   only   when   it   has   the   confidence   of<\/p>\n
majority  of  the  members  of  the   State  legislature,  is   called   ‘responsible’<\/p>\n
Government.     If   the   courts   are   to   take   decisions   on   executive   and<\/p>\n
legislative   matters,   it   will   throw   up   a   legal   conundrum,   where   the<\/p>\n
decision will be that of the courts and the responsibility will be that of<\/p>\n
the Government.  The said situation is sure to undermine the  symmetry<\/p>\n
in our Constitution.   The   Apex Court in  R.K.Garg v. Union of India<\/p>\n
[(1981)4 SCC 675(CB)], while considering the constitutional validity of<\/p>\n
a statutory provision, held as follows:<\/p>\n<\/blockquote>\n
                      “7.   …………………………….the legislature  understands<\/p>\n
           and  correctly   appreciates  the   needs  of   its   own  people,   its<\/p>\n
           laws are directed to problems made manifest by experience<\/p>\n
           and its  discrimination are based on adequate grounds.  The<\/p>\n
           presumption  of   constitutionality is indeed  so strong   that<\/p>\n
           in order to sustain it, the Court may  take into consideration<\/p>\n
           matters of common knowledge, matters of common report,<\/p>\n
           the history of the times and may assume every state of facts<\/p>\n
           which can be conceived existing at the time of legislation.<\/p><\/blockquote>\n
\n<\/blockquote>\n
                      8.     Another   rule   of   equal   importance   is   that   laws<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 93 ::\n<\/p><\/blockquote>\n
\n
           relating   to   economic   activities   should   be   viewed   with<\/p>\n
           greater   latitude   than   laws   touching   civil   rights   such   as<\/p>\n
           freedom of speech, religion etc.  It has been said by no less<\/p>\n
           a   person   than   Holmes,   J.   that   the   legislature   should   be<\/p>\n
           allowed some play in the joints, because it has to deal with<\/p>\n
           complex problems which do not admit of solution through<\/p>\n
           any   doctrinaire   or   strait-jacket   formula   and     this   is<\/p>\n
           particularly   true   in   case   of   legislation   dealing   with<\/p>\n
           economic matters, where, having regard to the nature of the<\/p>\n
           problems   required   to   be   dealt   with,   greater   play   in   the<\/p>\n
           joints   has   to   be   allowed   to   the   legislature.    The   court<\/p>\n
           should   feel   more   inclined   to   give   judicial   deference   to<\/p>\n
           legislative   judgment   in   the   field   of   economic   regulation<\/p>\n
           than   in   other   areas   where   fundamental   human   rights   are<\/p>\n
           involved.    Nowhere   has   this   admonition   been   more<\/p>\n
           felicitously   expressed   than   in   Morey   v.   Doud     (354   US<\/p>\n<\/blockquote>\n
           457) where Frankfurter, J. said in his inimitable style:<\/p>\n<\/blockquote>\n
                      ‘In   the   utilities,   tax   and   economic   regulation   cases,<\/p>\n
           there   are   good   reasons   for   judicial   self-restraint   if   not<\/p>\n
           judicial deference to legislative judgment.   The legislature<\/p>\n
           after all has the affirmative responsibility.  The courts have<\/p>\n
           only the power to destroy, not to reconstruct.  When these<\/p>\n
           are   added   to   the   complexity   of   economic   regulation,   the<\/p>\n
           uncertainty, the liability  to error, the bewildering  conflict<\/p>\n
           of   the   experts,   and   the   number   of   times   the   judges   have<\/p>\n
           been overruled by events–self-limitation can be seen to be<\/p>\n
           the  path   to  judicial  wisdom and  institutional   prestige  and<\/p>\n
           stability.’<\/p>\n
           The   Court   must   always   remember   that   ‘legislation   is<\/p>\n
           directed   to   practical   problems,   that   the   economic<\/p>\n
           mechanism   is   highly   sensitive   and   complex,   that   many<\/p>\n
           problems   are   singular   and   contingent,   that   laws   are   not<\/p>\n
           abstract propositions and do not relate  to abstract units and<\/p>\n
           are not to be measured by abstract symmetry’ ; ‘that exact<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 94 ::\n<\/p><\/blockquote>\n
\n
           wisdom   and   nice   adaption   of   remedy   are     not   always<\/p>\n
           possible’ and that ‘judgment is largely  a prophecy based on<\/p>\n
           meagre   and   uninterpreted   experience’.     Every   legislation<\/p>\n
           particularly in economic matters is essentially empiric and<\/p>\n
           it   is   based   on   experimentation   or  what   one   may  call   trial<\/p>\n
           and   error   method   and   therefore   it   cannot   provide   for   all<\/p>\n
           possible situations or anticipate all possible abuses.   There<\/p>\n
           may   be     crudities   and   inequities     in   complicated<\/p>\n
           experimental   economic   legislation   but     on   that   account<\/p>\n
           alone   it   cannot   be   struck   down   as   invalid.     The   courts<\/p>\n
           cannot, as pointed out by the United States Supreme Court<\/p>\n
           in   Secretary   of     Agriculture   v.   Central   Reig     Refining<\/p>\n
           Company [338 US 604 (1950)] be converted into tribunals<\/p>\n
           for   relief   from   such   crudities   and   inequities.    There   may<\/p>\n
           even be possibilities of  abuse, but that too cannot of itself<\/p>\n
           be   a   ground   for   invalidating   the   legislation,   because   it   is<\/p>\n
           not possible for any legislature to anticipate as if by some<\/p>\n
           divine prescience, distortions  and  abuses  of its legislation<\/p>\n
           which may be made by those subject to its provisions and<\/p>\n
           to   provide   against   such   distortions   and     abuses.     Indeed,<\/p>\n
           howsoever great may be the care bestowed on its framing,<\/p>\n
           it   is   difficult   to   conceive   of   a   legislation   which   is   not<\/p>\n
           capable   of   being   abused   by   perverted   human   ingenuity.<\/p>\n
           The Court  must therefore adjudge   the constitutionality of<\/p>\n
           such legislation by the generality of its provisions and not<\/p>\n
           by its crudities or inequities or by the possibilities of abuse<\/p>\n
           of   any   of     its   provisions.    If   any   crudities,   inequities   or<\/p>\n
           possibilities   of   abuse   come   to   light,   the   legislature   can<\/p>\n
           always   step   in   and   enact   suitable   amendatory   legislation.<\/p>\n
           That   is   the   essence   of   pragmatic   approach   which   must<\/p>\n
           guide  and   inspire  the  legislature  in   dealing   with  complex<\/p>\n
           economic issues.\n<\/p><\/blockquote>\n
                      Xxxxxxx                xxxxxxx               xxxxx    xxxxx<\/p>\n<\/blockquote>\n
                      19.          …………………………………….The   Court   must<\/p>\n
           always   bear   in   mind   the   constitutional   proposition<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 95 ::\n<\/p><\/blockquote>\n
\n
           enunciated   by   the   Supreme  Court  of   the  United   States   in<\/p>\n
           Munn  v. Illinois  (94  US 13), namely, ‘that    courts  do  not<\/p>\n
           substitute   their   social   and   economic   beliefs   for   the<\/p>\n
           judgment of the legislative bodies’.   The Court must defer<\/p>\n
           to   legislative   judgment   in   matters   relating   to   social   and<\/p>\n
           economic   policies     and   must   not   interfere,   unless   the<\/p>\n
           exercise   of   legislative   judgment   appears     to   be     palpably<\/p>\n
           arbitrary.    The   Court   should     constantly   remind   itself   of<\/p>\n
           what   the   Supreme   Court   of   the   United   States   said   in<\/p>\n
           Metropolis  Theater Company v. City of Chicago  [228 US<\/p>\n
           61 (1912)]:\n<\/p><\/blockquote>\n
<\/blockquote>\n
                      ‘The problems of government are practical ones and<\/p>\n
           may justify, if they do not require, rough accommodation,<\/p>\n
           illogical   it   may   be,     and   unscientific.     But   even   such<\/p>\n
           criticism should not be hastily expressed.   What is best is<\/p>\n
           not always   discernible, the wisdom of any choice may be<\/p>\n
           disputed   or   condemned.     Mere   errors   of   government   are<\/p>\n
           not subject to our judicial review’.”(Emphasis supplied)<\/p>\n<\/blockquote>\n
                      93.  Mr.Justice Frankfurter in his dissenting opinion in West<\/p>\n
Virginia   State   Board   of   Education   v.   Barnette   319   US   624   (1943),<\/p>\n
advocated the need for judicial restraint while considering the validity of<\/p>\n
a   legislation.   The   case   arose,   as   the   children   of     jehovah’s   witnesses<\/p>\n
refused to perform the flag salute, defying the mandatory provision of a<\/p>\n
law   in   force   in   the   State   of   West   Virginia.   The   said   provision   was<\/p>\n
challenged as unconstitutional.  Though, earlier the said law was held to<\/p>\n
be constitutional on more than one  occasion  by the American Supreme<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 96 ::\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
Court, this time it was held to be unconstitutional by the majority.  In his<\/p>\n
powerful   dissenting   opinion,   which   is   respected   the   world   over,   the<\/p>\n
learned Judge observed:\n<\/p>\n<\/p>\n
          “As a member of this Court, I am   not justified in writing<\/p>\n
          my   private   notions   of   policy   into   the   Constitution,   no<\/p>\n
          matter   how   deeply   I   may   cherish   them     or   how<\/p>\n
          mischievous   I   may   deem   their   disregard.    The   duty   of   a<\/p>\n
          judge     who   must   decide   which   of   two   claims   before   the<\/p>\n
          Court    shall  prevail,  that  of a State  to  enact  and    enforce<\/p>\n
          laws within its general competence or that of an individual<\/p>\n
          to   refuse     obedience   because   of   the   demands   of   his<\/p>\n
          conscience, is not that of the ordinary person.<\/p>\n<\/blockquote>\n
                      It can never be emphasized too much that one’s own<\/p>\n
          opinion   about   the   wisdom     or   evil   of   a   law   should   be<\/p>\n
          excluded  altogether when one is  doing one’s    duty on the<\/p>\n
          bench.    The only opinion of our own even looking in that<\/p>\n
          direction that is material is our opinion  whether legislators<\/p>\n
          could, in reason, have enacted  such a law.  In the light of<\/p>\n
          all the circumstances, including the history of this question<\/p>\n
          in this Court, it would require more daring than I possess<\/p>\n
          to   deny   that   reasonable   legislators   could   have   taken   the<\/p>\n
          action   which   is   before   us   for   review.     Most   unwillingly,<\/p>\n
          therefore,   I   must   differ   from   my   brethren   with   regard   to<\/p>\n
          legislation like this. …………………..<\/p>\n
          For   the   removal   of     unwise   laws   from  the   statute   books,<\/p>\n
          appeal   lies   not   to   the   courts,   but   to   the   ballot   and   to   the<\/p>\n
          processes of democratic government…… .<\/p><\/blockquote>\n
          The   Constitution   does   not     give   us   greater   veto   power<\/p>\n
          when  dealing with one phase of ‘liberty’ than with another,<\/p>\n
          or   when   dealing   with   grade   school   regulations   than   with<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 97 ::\n<\/p>\n
          college   regulations   that   offend   conscience.    In   neither<\/p>\n
          situation is our function comparable to that of a legislature,<\/p>\n
          or   are   we   free   to   act   as   through   we   were   a   super-<\/p>\n
          legislature. ………………………..<\/p>\n
          The   reason   why,   from   the   beginning,   even   the   narrow<\/p>\n
          judicial   authority   to   nullify     legislation   has   been   viewed<\/p>\n
          with a jealous eye is that it serves to prevent the full play<\/p>\n
          of   the   democratic   process.    The   fact   that   it   may   be   an<\/p>\n
          undemocratic   aspect   of   our   scheme   of   government   does<\/p>\n
          not call  for its rejection or its disuse.  But it is the best of<\/p>\n
          reasons,   as   this   Court   has   frequently   recognized,   for   the<\/p>\n
          greatest caution in its use……. .\n<\/p>\n
\n          Tact,   respect,   and   generosity   toward   variant     views   will<\/p>\n
          always   commend   themselves   to   those   charged   with   the<\/p>\n
          duties of  legislation so as to achieve a maximum of good<\/p>\n
          will and to require a minimum of unwilling submission to<\/p>\n
          a   general   law.     But   the   real   question   is,   who   is   to   make<\/p>\n
          such             accommodations,                          the                courts         or          the<\/p>\n
          legislature?…………………….<\/p>\n
          A court can only strike down. It can only say ‘This or that<\/p>\n
          law is  void’.   It cannot  modify or qualify, it cannot  make<\/p>\n
          exceptions                           to                       a                                   general<\/p>\n
          requirement………………………………….<\/p>\n
          If the function of this Court is to be essentially no different<\/p>\n
          from that  of a legislature,  if  the considerations  governing<\/p>\n
          constitutional   construction   are   to   be   substantially   those<\/p>\n
          that   underlie   legislation,   then   indeed   judges   should   not<\/p>\n
          have   life   tenure,   and   they   should   be   made   directly<\/p>\n
          responsible  to  the electorate.   There  have been many, but<\/p>\n
          unsuccessful,   proposals  in   the   last  60  years   to  amend  the<\/p>\n
          Constitution to that end…………………….. .<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 98 ::\n<\/p>\n
          I think  I appreciate  fully  the  objections  to the law before<\/p>\n
          us.     But   to   deny   that   it   presents   a   question,   upon   which<\/p>\n
          men   might   reasonably   differ,   appears   to   me   to   be<\/p>\n
          intolerance.     And   since   men   may   so   reasonably   differ,   I<\/p>\n
          deem it beyond  my constitutional power to assert my view<\/p>\n
          of the wisdom of this law against the view of the State of<\/p>\n
          West Virginia……………….\n<\/p>\n
\n          The   attitude   of   judicial   humility   which   these<\/p>\n
          considerations   enjoin   is   not   an   abdication   of   the   judicial<\/p>\n
          function.                  It   is   a   due   observance   of   its<\/p>\n
          limits……………………………………………………..<\/p>\n
          Courts,   as   has   often   been   said,   are   not   to   think   of   the<\/p>\n
          legislators,   but   of   the   legislature–the   great,   continuous<\/p>\n
          body   itself,   abstracted   from   all   the   transitory   individuals<\/p>\n
          who   may   happen   to   hold   its   power.     It   is   this   majestic<\/p>\n
          representative of the people whose action is in question, a<\/p>\n
          coordinate   department   of   the   Government,   charged   with<\/p>\n
          the   greatest   functions,   and   invested,   in   contemplation   of<\/p>\n
          law,   with   whatsoever   wisdom,  virtue,   and   knowledge   the<\/p>\n
          exercise of such functions requires.\n<\/p>\n<\/p>\n
                      To set aside the acts of such a body, representing in<\/p>\n
          its own field, which is the very highest of all, the ultimate<\/p>\n
          sovereign,  should  be  a solemn, unusual,  and    painful  act.<\/p>\n
          Something   is   wrong   when   it   can   ever   be   other   than  that.<\/p>\n
          And   if it be true that the holders of legislative power are<\/p>\n
          careless   or   evil,   yet   the     constitutional   duty   of   the   court<\/p>\n
          remains untouched;  it cannot rightly attempt to protect the<\/p>\n
          people by undertaking a function not its own.  On the other<\/p>\n
          hand,   by   adhering   rigidly   to   its   own   duty,   the   court   will<\/p>\n
          help,   as   nothing   else   can,   to   fix   the   spot   where<\/p>\n
          responsibility   lies,   and   to   bring   down   on   that   precise<\/p>\n
          locality   the   thunderbolt   of   popular   condemnation.”<\/p>\n
          (Emphasis supplied)<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 99 ::\n<\/p>\n
Though the above wise words are found in a dissenting  judgment, they<\/p>\n
are well settled principles concerning judicial restraint and deference to<\/p>\n
judicial wisdom, while considering the validity of a statute.   They serve<\/p>\n
as the load-star to the judicial mariners voyaging the turbulent waters of<\/p>\n
social issues.\n<\/p>\n<\/p>\n
                      94.  I have extensively quoted from the decision of the Apex<\/p>\n
Court in R.K.Garg v. Union of India [(1981)4 SCC 675] and also from<\/p>\n
the  opinion  of  Justice   Frankfurter,  to   stress   the  point  that  a  legislation<\/p>\n
will   be   struck   down   by   this   Court   only   sparingly   and   that   too   on<\/p>\n
compelling grounds.  The people of Kerala through their representatives<\/p>\n
in   the   legislature,   have   the   right   to   decide   what     laws   should     govern<\/p>\n
them,   subject,   of   course,   to   the   constitutional   limitations.     The   courts<\/p>\n
should     respect   the   judgment   and   wisdom   of   the   legislature   on   social<\/p>\n
issues,   reflecting   the   will   of     “we,   the   people”.     The   Judges,   however<\/p>\n
learned or erudite they may be, may not substitute their judgment for that<\/p>\n
of the legislature.     These principles will squarely apply to this case, as<\/p>\n
the provisions in Section 11(17) of the Act have been struck down by the<\/p>\n
Full   Bench   in  Narayanan’s   case,   though   it   is   not   expressly   stated   so.<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 100 ::\n<\/p>\n
The  legal   effect   of   the   Full   Bench  decision   is   that   the   meaning   of  the<\/p>\n
word “tenant” in Section 11(17) defined in Section 2(6), is struck down<\/p>\n
to the extent it includes heirs of the deceased tenant, for the purpose of<\/p>\n
Section 11(17).   The action of the Full Bench can be described as also<\/p>\n
adding an explanation   to Section 11(17), stating that the word “tenant”<\/p>\n
used  therein  does  not  have  the  meaning  assigned  to  it  in  Section  2(6).<\/p>\n
Thus,   with   great   respect,   it   is   pointed   out   that   the   Full   Bench   has<\/p>\n
ventured  to   judicially   amend    Section   11(17)  and   has   thus   entered   the<\/p>\n
constitutionally  forbidden  terrain.    This   was  done   without  adverting  to<\/p>\n
the   well   settled   canons   of   interpretation.     It   was   done   on   very  slender<\/p>\n
grounds.     The   Full   Bench   proceeded   on   the   footing   that   the   clog   on<\/p>\n
eviction will make the provision unconstitutional.  But, the Constitution<\/p>\n
confers   on   the   State   legislature   powers   to   make   permanent   clog   on<\/p>\n
eviction   and   such   powers   have   been   successfully   exercised   by   it.   See<\/p>\n
Section 11(11)(ii)  of the Act and also   Section  106 of the Kerala Land<\/p>\n
Reforms Act.  Further, the Full Bench failed to notice that the provisions<\/p>\n
of Section 11(17) starts with a non obstante clause.  So, the provisions of<\/p>\n
the  said   sub-section  will   prevail    over  other  sub-sections.     The benefit<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 101 ::\n<\/p>\n
conferred on the tenant under Section 11(17), granting  exemption  from<\/p>\n
the operation of Section 11(3), subject to satisfying certain  stipulations,<\/p>\n
is  a right  conferred on a tenant.   It creates a corresponding  duty in the<\/p>\n
landlord   and   the   Rent   Control   Court.     So,   it   is   pointed   out   with   great<\/p>\n
respect   that   the   view     expressed   by   the   Full   Bench   that   the   benefit<\/p>\n
conferred   on   the   tenant   is   a   personal   privilege   of   the   original   tenant,<\/p>\n
appears to be not correct.  I have failed to persuade myself to subscribe<\/p>\n
to   the   views   of   my   learned   brother   Padmanabhan   Nair,   J.,   in   his<\/p>\n
judgment as he is endorsing the views of the Full Bench.<\/p>\n
                      95.     Giving   due   deference   to   the   legislative   judgment   and<\/p>\n
giving effect to the plain words of the statute, I feel that there is nothing<\/p>\n
to be interpreted in Section  11(17) of the Act.   Even assuming there is<\/p>\n
any ambiguity  in the statute, the same should go in favour of the tenant,<\/p>\n
in view of the decisions of the Apex Court.   The Apex Court in  Mohd.<\/p>\n
Shafi   v.   Addl.Distt.   And   Sessions   Judge<\/a>  [(1977)2   SCC   226]   held   as<\/p>\n
follows:\n<\/p>\n<\/p>\n
           “If the  language  of the  Explanation  is  susceptible  of  two<\/p>\n
           interpretations,   we   should   prefer   that   which   enlarges   the<\/p>\n
           protection of the tenant rather than that which restricts it.”<\/p>\n<\/blockquote>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 102 ::\n<\/p>\n
Again,   the   Apex   Court   in  Mani   Subrat   Jain   v.   Raja   Ram   Vohra<\/a><\/p>\n
[(1980)1 SCC 1] observed as follows:\n<\/p>\n<\/p>\n
                      “5.     It   is   too   platitudinous   to   preach   and   too<\/p>\n
           entrenched   to   shake,   the   proposition   that   rent   control<\/p>\n
           legislation in a country of terrible accommodation shortage<\/p>\n
           is a beneficial measure whose construction must be liberal<\/p>\n
           enough  to fulfil  the statutory purpose  and  not frustrate  it.<\/p>\n
           So construed, the benefit of interpretative doubt belongs to<\/p>\n
           the   potential   evictee   unless   the   language   is   plain   and<\/p>\n
           provides   for   eviction.     That   intendment   must,   by<\/p>\n
           interpretation,  be  effectuated.    This  is  the  essence  of rent<\/p>\n
           control jurisprudence.”\n<\/p><\/blockquote>\n
<\/blockquote>\n
                      96.  In the background of the above legal setting, which was<\/p>\n
not   adverted   to   by   the   Full   Bench,   I   am   of   the   humble   view   that   the<\/p>\n
decision       in  Narayanan   v.   Shalima<\/a>  (2003(2)   KLT   317   FB)   that   the<\/p>\n
right   of   the   original   tenant   under   Section   11(17)   of   the   Act   will   not<\/p>\n
devolve   upon   his     heirs,   does   not   lay   down   the   correct   legal   position.<\/p>\n<\/blockquote>\n
The     heirs   of   the   tenant   are   also   entitled   to   the   protection,     provided<\/p>\n
under   the   said   sub-section   against   eviction   under   Section   11(3)   of   the<\/p>\n
Act. The reference is answered as above.\n<\/p>\n<\/p>\n
                      97. After, I almost finalised my judgment, I had the benefit<\/p>\n
of reading the brilliant and illuminative judgments of K.A.Abdul Gafoor<\/p>\n
and   Kurian   Joseph,   JJ.     I   fully   agree   with   the   conclusions   of   Abdul<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 103 ::\n<\/p>\n
Gafoor,   J.     With   great   respect,   I   am   unable   to   endorse   the   views   of<\/p>\n
Kurian Joseph, J.\n<\/p>\n<\/p>\n
                                                                           Sd\/-\n<\/p>\n
                                                                  K.BALAKRISHNAN NAIR<\/p>\n
                                                                          Judge.\n<\/p>\n
\nPadmanabhan Nair, J.\n<\/p>\n<\/p>\n
                      98.   Whether the heirs of a tenant who was   in   occupation<\/p>\n
of the building from   1.4.1940   and has been   in continuous occupation<\/p>\n
of the same till his death  are entitled to the protection under Section 11<\/p>\n
(17)  of the Kerala  Buildings  (Lease  & Rent  Control)  Act, 1965  (`Rent<\/p>\n
Act’ for short), from being evicted on the ground of bona fide need of the<\/p>\n
landlord is the question to be decided on the reference.<\/p>\n
                      99.     Revision   Petitioners   were     the   respondents\/tenants   in<\/p>\n
R.C.P.No.   53   of   1997   on   the   file   of     Additional   Munsiff   &   Rent<\/p>\n
Controller,   Kozhikode,   who   were   the   appellants   in   R.C.A.No.218   of<\/p>\n
1998   on   the   file   of   the   Additional   District   Court   and   Rent   Control<\/p>\n
Appellate   Authority,   Kozhikode.     Respondent-landlady   filed     Rent<\/p>\n
Control Petition  for eviction of  revision petitioners  under Sections 11<\/p>\n
(2)(b)  (arrears   of  rent),   11(  3)  (own   occupation  for  the   landlady’s   son)<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 104 ::\n<\/p>\n
and   11(4)   (i)   (sub-letting)   of   the   Rent   Act.   The   following   were   the<\/p>\n
material averments in the petition.    Late Vikkara Vellodi,  predecessor-<\/p>\n
in-interest   of   the   landlady   let   out   petition   schedule   building   bearing<\/p>\n
Door No.13\/651(old  No.12\/268) of Municipality on 17-11-1950  to  late<\/p>\n
A.M.Velayudhan     who  was    the   predecessor-in-interest   of   the   revision<\/p>\n
petitioners.     The   rights   of   the   landlord   devolved   upon   the   landlady<\/p>\n
under   Ext.A1 deed   dated 27-02-1974.     Tenants defaulted payment of<\/p>\n
rent since July, 1995.   They  sub-let the building without the knowledge<\/p>\n
and   consent   of   the   landlady.       The   landlady   bona   fide   needed   the<\/p>\n
tenanted premises for the occupation of her son who is dependent on her,<\/p>\n
to   start a business in home appliances.   Revision petitioners contended<\/p>\n
that   the   building   was   let   out     to   late   Velayudhan   on   1-4-1936     on   a<\/p>\n
monthly   rent   of   Rs.9\/-     and     subsequently   the   rent   was   enhanced   to<\/p>\n
Rs.75\/-.     The   landlady   refused   to   accept   the   rent   which   was   sent   by<\/p>\n
money   order.     There   was   no   wilful   default   on   the   part   of   the   tenant.<\/p>\n
Late A.M.Velayudhan was doing business in the building from 1936 to<\/p>\n
1973   and   he   was   solely   depending   on   the   income   derived   from   the<\/p>\n
business  for his livelihood.    After  the death of the original    tenant, his<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 105 ::\n<\/p>\n
widow Ammukutty was doing business till 1978 and on her death, fourth<\/p>\n
revision petitioner, who is the son of original tenant, was doing business.<\/p>\n
3rd  and 4th respondents are solely depending on the income derived from<\/p>\n
the business conducted in the petition schedule building and  no suitable<\/p>\n
building  was available in the locality.   It was contended that   the need<\/p>\n
put forward by the landlady is only a ruse to evict the petitioners and the<\/p>\n
same   was   not   bona   fide.     The   averment   that   the   tenants     sublet   the<\/p>\n
building was denied.  Since the tenancy  originated in the year 1936, the<\/p>\n
tenants   had   acquired   a   right   of   permanent   tenancy.     The   revision<\/p>\n
petitioners are permanent tenants and they are entitled to get  all benefits<\/p>\n
conferred on such tenants under the Rent Act.<\/p>\n
                      100.       The Rent Controller, after considering the evidence,<\/p>\n
rejected the claim for eviction put forward by the landlady under Section<\/p>\n
11(2)(b)     and   11(4)(i)   of   the   Rent   Act.     The   need   put   forward   by   the<\/p>\n
landlady was found to be genuine.    Rent Controller found that Exts.B2<\/p>\n
to   B16     rent   receipts   produced   by   revision   petitioners   to   substantiate<\/p>\n
their contention that the entrustment was in the year 1936 will not show<\/p>\n
that   those receipts  are   in respect of the petition  schedule building.   It<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 106 ::\n<\/p>\n
was also found that the earliest receipt was dated  6-10-1941.  The Rent<\/p>\n
Controller   also   relied   on     a   decision   inter   parties     in   R.C.P.No.10   of<\/p>\n
1977, which was a proceeding initiated for fixation of fair rent.   It  was<\/p>\n
found that the date of entrustment was in the year 1950 and that  finding<\/p>\n
was confirmed by the Appellate Authority as well as the revisional court<\/p>\n
in   R.C.R.P.No.96   of   1979.     It   was   held   that   Ext.A3   order       in<\/p>\n
R.C.R.P.No.96   of   1979   will   operate   as   res   judicata.     Based   on   these<\/p>\n
materials, Rent Controller held that the  entrustment was on 17-11-1950<\/p>\n
for a monthly rent of Rs.75\/-  and hence the revision petitioners are not<\/p>\n
entitled   to   get   the   benefits   under   Section   11(17)   of   the   Rent   Act.<\/p>\n
Revision Petitioners appealed.  Rent Control (Appellate Authority)  held<\/p>\n
that in view of Exts.B2 to  B16, the contention  of the landlady that the<\/p>\n
entrustment was in the year   1950 cannot be accepted.   However it was<\/p>\n
found that the earliest receipt was  dated 22-7-1941.  It was further held<\/p>\n
that there were no other documents produced by the revision petitioners<\/p>\n
to   prove   possession   of   the   building   by   deceased   Velayudhan   prior   to<\/p>\n
1940.     So   it   was   held   that   the   tenants   failed   to   prove   that   their<\/p>\n
predecessor   was   in   possession   of   the   building   prior   to   1-4-1940.<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 107 ::\n<\/p>\n
Appellate Authority confirmed  the finding of    Rent Control Court that<\/p>\n
the revision petitioners are not entitled to claim protection under Section<\/p>\n
11(17)   of   the   Act.     Challenging   those   decisions,   this   Civil   Revision<\/p>\n
Petition has been filed.\n<\/p>\n<\/p>\n
                      101.     When   the   case   was   heard   by   a   Division   Bench,<\/p>\n
counsel  appearing  for revision  petitioners  attacked  the  correctness  of a<\/p>\n
Full   Bench   decision   of   this   Court   reported   in  Narayanan  v.  Shalima<\/a><\/p>\n
(2003(2)   K.L.T.317   (F.B.))   in   which   it   was   held   that   the   benefit<\/p>\n
conferred on the tenant under Section 11(17) of the Act  is personal and<\/p>\n
that it cannot be inherited by his legal heirs.  Before the Division Bench,<\/p>\n
revision   petitioners   filed   C.M.P.No.4433   of   2001   to   accept   fresh<\/p>\n
documents as additional evidence in the C.R.P and prayed for a remand.<\/p>\n
The Division Bench observed that ‘if the decision of the Full Bench was<\/p>\n
to   hold   the   field,   adjudication   of   the   question   might   have   given   little<\/p>\n
relief,   since   the   tenants   were   successors-in-interest   and   the   benefits<\/p>\n
spoken   to   by   section   11(17)   of   the   Act   were   to   be   confined   to   the<\/p>\n
original   tenants   alone’.     Division   Bench   was   also   of   the   view   that   the<\/p>\n
principles   laid   down   in   the   decisions   reported   in  Gian   Devi   Anand  v.<\/p>\n
C.R.P.NO.2012\/01<\/a><\/p>\n
                                                            :: 108 ::\n<\/p>\n
Jeevan Kumar  (A.I.R.1985   S.C.796),  Karthiayani  v.  Anandan<\/a>  (2004(2)<\/p>\n
K.L.T   575)   and  George   Peter  v.  T.K.Sali  (I.L.R.1999<\/a>(1)   Kerala   529)<\/p>\n
had not been cited and considered by the Full Bench and hence a fresh<\/p>\n
examination  of the  issue  was    necessary   and  referred  the matter  to  be<\/p>\n
heard by  a larger Bench.\n<\/p>\n<\/p>\n
                      102.   When the matter was placed before the Full Bench it<\/p>\n
was observed   that in  Narayanan’s Case  (supra) this Court   interpreting<\/p>\n
Section   11(17)   of   the   Act,     had   held   that   `the   context   in   which   the<\/p>\n
expression   “tenant”   has   been   used   under   the   above   provision   required<\/p>\n
the   adoption   of   a   restricted   meaning   than   the   one   ascribed   to   the   said<\/p>\n
expression in the definition of the  said expression under  Section 2(6) of<\/p>\n
the Act and that the benefit conferred under Section 11(17) of the Act is<\/p>\n
a personal privilege conferred on the tenant who has to be in possession<\/p>\n
of the premises as a tenant on 1-4-1940 and who continued as such’.  Full<\/p>\n
Bench   formulated   three     questions.     In   this   Reference   we   are   mainly<\/p>\n
concerned  with the third point.  It reads as follows:-<\/p>\n
                      “Even   if  it  is   found   that   deceased   A.M.Velayudhan<\/p>\n
           has   been   in   continuous   occupation   of   the   shop   room   in<\/p>\n
           question as a tenant from 1-4-1940 onwards and continued<\/p>\n
           as   such   until   his   death   in   the   year   1973,   are   the   revision<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 109 ::\n<\/p><\/blockquote>\n
\n
           petitioners who are the legal heirs of the said Velayudhan<\/p>\n
           entitled   to   claim   the   benefit   of   immunity   from   eviction<\/p>\n
           under Sec.11(17) of the Act as an inherited right, in a Rent<\/p>\n
           Control Petition filed in the year 1997?”.<\/p>\n<\/blockquote>\n
The Full Bench was     prima facie     inclined to agree with the decision<\/p>\n
rendered in  Narayanan’s Case  (supra) that the benefit which was sought<\/p>\n
to be conferred on the tenant is a personal privilege; but it was held that<\/p>\n
there   may   be   cases     wherein   the   conferee   of   the   privilege   was   in<\/p>\n
continuous   occupation   of   the   premises   from   1-4-1940   as   a   tenant   and<\/p>\n
died only after the commencement of the Act.  It was further opined that<\/p>\n
if the landlord sought eviction in the year 1970 Velayudhan could have<\/p>\n
successfully   resisted   the   application   and   claimed   permanency   under<\/p>\n
Section 11(7) of the Rent Act.   It was further held that whether such a<\/p>\n
right   available  to  Velayudhan   after  the   commencement   of  the  Act  will<\/p>\n
stand extinguished on his death in the year 1973 is also to be considered.<\/p>\n
The   Full   Bench   was   of   the   opinion   that   the   principle   laid   down   in<\/p>\n
Narayanan’s  Case   (supra) requires  re-consideration  and  hence  referred<\/p>\n
the matter to the Larger Bench.\n<\/p>\n<\/p>\n
                      103.   To understand and appreciate the meaning of Section<\/p>\n
11(17)   of   the   Act,   it   is   necessary   to   know   the   legislative   history   also.<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 110 ::\n<\/p>\n
Prior   to   the   formation   of   the   State   of   Kerala,   law   prevailing   in<\/p>\n
Travancore-Cochin   area   was   the   Travancore   Cochin   (Buildings   Lease<\/p>\n
and Rent Control) Order 1950.   It was passed under Section 13 of   the<\/p>\n
Travancore   Cochin   Public   Safety   Measures   Act,   1950.     In   Malabar<\/p>\n
District,   the   law   applicable   was   that   of   the   State   of   Tamil   Nadu.<\/p>\n
Initially,   the   law   prevailing   in   Madras   State   was   the   Madras   Rent<\/p>\n
Control Order, 1941.   In the year 1945 two separate orders were issued,<\/p>\n
in   respect   of   residential   buildings   Madras   House   Rent   Control   Order<\/p>\n
1945     and   the   Madras   Non-Residential   Building   Rent   Control   Order<\/p>\n
1945     in   respect   of   non-residential   buildings.     Those   orders     were<\/p>\n
followed by the Madras Buildings (Lease and Rent Control) Act, 1946.<\/p>\n
Section   18   of  the   Act   (Act   XV of   1946)   provides   that   all   proceedings<\/p>\n
commenced   and     taken   under   the   Madras   House   Rent   Control   Order,<\/p>\n
1945  and  Madras  Non  Residential   Building  Rent  Control  Order,  1945,<\/p>\n
and   pending   at   the     commencement   of   the   Act     were   deemed   to   have<\/p>\n
been   commenced   or   taken   under   the   corresponding   provisions   of   the<\/p>\n
Act.     That   Act   was     repealed     by   Madras   Building   (Lease     and   Rent<\/p>\n
Control) Act, 1949.  Some of the provisions in that Act were amended by<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 111 ::\n<\/p>\n
the   Madras   Buildings   (Lease   and   Rent   Control)   Act,   1951.<\/p>\n
Subsequently,   that   Act   was   repealed   by   Tamil   Nadu   Buildings   (Lease<\/p>\n
and Rent Control)  Act, 1964 (Tamil Nadu Act 18\/1964).   A perusal of<\/p>\n
the  orders  and Acts referred to above shows  that none of the orders  or<\/p>\n
Acts  contain a provision similar or akin to that of section 11(17) of the<\/p>\n
Kerala Rent Act.   It is also pertinent to note that   Rent Control Acts of<\/p>\n
Andhra   Pradesh,   Bihar,   Bombay,   Delhi,   Haryana,   Karnataka,   Madhya<\/p>\n
Pradesh,   Maharashtra,   Rajasthan,   Tamil   Nadu,   U.P.   and   West   Bengal<\/p>\n
now in force  in Union of India also do not contain a provision similar to<\/p>\n
Section       11(17) of the Rent Act.\n<\/p>\n<\/p>\n
                      104.     The   Kerala   Buildings   (Lease   and   Rent   Control)<\/p>\n
Ordinance,   1959   was   promulgated   with   effect   from   17th  June,   1959<\/p>\n
repealing   the   Travancore   Cochin   Buildings   (Lease   and   Rent   Control)<\/p>\n
Act, 1950 and also the Madras (Lease and Rent Control) Act as in force<\/p>\n
in   the   Malabar   District   referred   to   in   section   4   of   the   States   Re-<\/p>\n
organisation Act, 1956.  Section 11 of the Ordinance deals with eviction<\/p>\n
of a tenant but it had  only sixteen  sub-sections. The Ordinance did not<\/p>\n
contain any provision similar to Section 11(17) of the present Rent Act.<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 112 ::\n<\/p>\n
The  Kerala   Buildings  (Lease  and  Rent  Control)  Bill,  1958   was   placed<\/p>\n
before   the   Legislative   Assembly   on   12-12-1958.       Section   11   of   Bill<\/p>\n
shows   that it deals with eviction of a tenant.   It   contains only sixteen<\/p>\n
sub-sections.  The Bill also did not contain any provision corresponding<\/p>\n
to   Section   11(17)   of   the   Rent   Act.     The   Bill   was   sent   to   Select<\/p>\n
Committee.         The   Select   Committee     considered   the   Bill   clause   by<\/p>\n
clause and submitted a report.  Section 11 of the Bill dealt with eviction<\/p>\n
of   the   tenant.     The   Bill   approved   by   Select   Committee     also   did   not<\/p>\n
contain a provision similar to the present section 11(17).   But when the<\/p>\n
Bill came up   for discussion before the Legislative Assembly on   31-3-<\/p>\n
1959,  the Law Minister moved an amendment to Section 11 to add sub-<\/p>\n
section 17 also.  The amendment proposed  reads as follows:-<\/p>\n
                                 “(17)   Notwithstanding   anything   contained<\/p>\n
                      in   this   section   a   tenant   who   has   been   in<\/p>\n
                      continuous  occupation  of a building for a period<\/p>\n
                      of fifteen years either as tenant or otherwise, shall<\/p>\n
                      not   be   liable   to   be   evicted   for   bona   fide<\/p>\n
                      occupation   of   the   landlord   or   of   the   occupation<\/p>\n
                      by   any   member   of   his   family   provided   that   a<\/p>\n
                      landlord of  a residential building shall be entitled<\/p>\n
                      to   evict   such   a   tenant   of   that   building   if   the<\/p>\n
                      landlord   has   been   living   in   a   place   outside   the<\/p>\n
                      city,   town   or   village   in   which   the   building   is<\/p>\n
                      situated   for   a   period   of   not   less   than   five   years<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 113 ::\n<\/p><\/blockquote>\n
\n
                      immediately   before   he   makes   an   application   to<\/p>\n
                      the   Rent   Control   Court   for   being   put   in<\/p>\n
                      possession   of   the   building   and   requires   the<\/p>\n
                      building,   bona   fide   for   his   own   permanent<\/p>\n
                      residence   or   of   the   permanent   residence   of   any<\/p>\n
                      member   of   his   family   or   the   landlord   is   in   dire<\/p>\n
                      need of a place for residence and has none of his<\/p>\n
                      own”.\n<\/p><\/blockquote>\n
<\/blockquote>\n
The amendment was opposed.  The Law Minister agreed to  delete words<\/p>\n
‘or   otherwise’    and    ‘immediately’  and   also   agreed   to   change   the<\/p>\n
expression  ‘for   a   period   of   15   years’  to  ‘from   1-4-1940’  from   the<\/p>\n
proposed  amendment.     He agreed  to  add  an  explanation  to   the   Section<\/p>\n
also.  That amendment was put to vote and carried.  It reads as follows:-<\/p>\n
                                 “(17)            Notwithstanding                  anything<\/p>\n
                      contained in  this  section, a tenant  who has been<\/p>\n
                      in   continuous   occupation   of   a   building   from   1st<\/p>\n
                      April 1940    as a tenant  shall not be liable to be<\/p>\n
                      evicted for bona fide occupation of the landlord,<\/p>\n
                      or of the occupation by any member of his family<\/p>\n
                      provided that a landlord of  a residential building<\/p>\n
                      shall   be   entitled   to   evict   such   a   tenant   of   that<\/p>\n
                      building if the landlord has been living in a place<\/p>\n
                      outside   the   city,   town   or   village   in   which   the<\/p>\n
                      building  is situated  for a period  of not less  than<\/p>\n
                      five years  before he makes an application to the<\/p>\n
                      Rent  Control Court    for  being  put in  possession<\/p>\n
                      of   the   building   and   requires   the   building,   bona<\/p>\n
                      fide   for   his   own   permanent   residence   or   of   the<\/p>\n
                      permanent residence of any member of his family<\/p>\n
                      or   the   landlord   is   in   dire   need   of   a   place   for<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 114 ::\n<\/p>\n
                      residence and has none of his own.\n<\/p>\n
\n                     Explanation.-   In   computing   the   period   of   fifteen<\/p>\n
                     years, the period, if any, during which the landlord<\/p>\n
                     was   residing   outside   the   city,   town   or   village   in<\/p>\n
                     which the building is situate shall be excluded.”<\/p>\n
Subsequently   the   words   “of   fifteen   years”     were   deleted   in   the<\/p>\n
Explanation and words “continuous occupation” were added.<\/p>\n
                     105.     The   objects   and   reasons     or   the   debate   on   the<\/p>\n
enactment do not contain any indication as to why the Legislature made<\/p>\n
such  a provision  regarding  the tenant  who came into  occupation  of the<\/p>\n
building   prior   to   1-4-1940.         Section   11(17)   of   the   Rent   Act   reads   as<\/p>\n
follows:-\n<\/p>\n<\/p>\n
                      “11. Eviction of tenants:-.. . .  . . . . . .<\/p>\n
                                 . . .  . .  . . .  . .  . . .  . ”(17)Notwithstanding<\/p>\n
                      anything   contained   in   this   section   a   tenant   who<\/p>\n
                      has been in continuous  occupation  of a building<\/p>\n
                      from 1st April1940 as a tenant, shall not be liable<\/p>\n
                      to   be   evicted   for  bona   fide  occupation   of   the<\/p>\n
                      landlord or of the occupation by any member of<\/p>\n
                      his   family   dependent   on   him,   provided   that   a<\/p>\n
                      landlord of a residential building shall be entitled<\/p>\n
                      to   evict   such   a   tenant   of   that   building   if   the<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 115 ::\n<\/p>\n
                      landlord   has   been   living   in   a   place   outside   the<\/p>\n
                      city,   town   or   village   in   which   the   building   is<\/p>\n
                      situated   for   a   period   of   not   less   than   five   years<\/p>\n
                      before   he   makes   an   application   to   the   Rent<\/p>\n
                      Control Court for being  put in possession  of the<\/p>\n
                      building, and requires the building  bona fide  for<\/p>\n
                      his   own   permanent   residence   or   for   the<\/p>\n
                      permanent residence of any member of his family<\/p>\n
                      or   the   landlord   is   in   dire   need   of   a   place   for<\/p>\n
                      residence and has none of his own.\n<\/p>\n<\/p>\n
                                 Explanation:- In computing  the  period  of<\/p>\n
                      continuous   occupation   from   1st  April,   1940,   the<\/p>\n
                      period,   if   any,   during   which   the   landlord   was<\/p>\n
                      residing outside the city, town or village in which<\/p>\n
                      the building is situated shall be excluded.”<\/p>\n
The  Explanation     provides   that   in   computing  the   period   of   continuous<\/p>\n
occupation from 1-4-1940, the period in which the landlord was residing<\/p>\n
outside the city, town or village in which the building is situated shall be<\/p>\n
excluded.    Both sides were not able to give us a satisfactory meaning of<\/p>\n
the Explanation.\n<\/p>\n<\/p>\n
                      106.     The   preamble   of   the   Rent   Act   says   that   the     Act   is<\/p>\n
meant to regulate the leasing of buildings and to control the rent of such<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 116 ::\n<\/p>\n
buildings  in  the  State  of  Kerala.    A perusal  of  the  objects  and  reasons<\/p>\n
shows that the Act is also meant for prevention of unreasonable eviction<\/p>\n
of tenants from the buildings.  Section  2(3) of the Rent Act defines `land<\/p>\n
lord’   and   Section   2(6)   defines   ‘tenant’.     Sub-sections   (3)   and   (6)   of<\/p>\n
Section 2 read   as follows:\n<\/p>\n<\/p>\n
                                “2.  Definitions:-   In   this   Act,   unless   the<\/p>\n
                     context otherwise requires,-\n<\/p><\/blockquote>\n
<\/blockquote>\n
                                (1) …………….\n<\/p><\/blockquote>\n
\n                                (2)……….\n<\/p><\/blockquote>\n
\n
                     (3).   “landlord”   includes   the   person   who   is<\/p>\n
                     receiving   or   is   entitled   to   receive   the   rent   of   a<\/p>\n
                     building,   whether   on   his   own   account   or   on<\/p>\n
                     behalf   of   another   or   on   behalf   of   himself   and<\/p>\n
                     others   or   as   an   agent,   trustee,   executor,<\/p>\n
                     administrator, receiver or guardian or who would<\/p>\n
                     so   receive   the   rent   or   be   entitled   to   receive   the<\/p>\n
                     rent, if the building were let to a tenant”.<\/p>\n
                      (4) .. . . . . . . . . . . .\n<\/p><\/blockquote>\n
\n                      (5). . . . . . . . . . . . .\n<\/p><\/blockquote>\n
\n                      (6)        “tenant” means any person by whom or on<\/p>\n
                      whose account rent is payable for a building and<\/p>\n
                      includes:-\n<\/p><\/blockquote>\n
                                 (i)   the   heir   or   heirs   of   a   deceased   tenant,<\/p>\n
                      and<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 117 ::\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
                      (ii)   a   person   continuing   in   possession   after   the<\/p>\n
                      termination of the tenancy in his favour, but does<\/p>\n
                      not include a Kudikidappukaran as defined in the<\/p>\n
                      Kerala Land Reforms Act, 1963 (Kerala Act 1 of<\/p>\n
                      1964),   or   a   person   placed   in   occupation   of   a<\/p>\n
                      building  by  its  tenant,   or  a  person   to  whom the<\/p>\n
                      collection   of   rents   or   fees   in   a   public   market,<\/p>\n
                      cart-stand   or   slaughter   house   or   of   rents   for<\/p>\n
                      shops   has   been   farmed   out   or   leased   by   a<\/p>\n
                      Municipal   Council,   Municipal   Corporation,<\/p>\n
                      Township Committee or Panchayat.\n<\/p><\/blockquote>\n
\n                      (7) . . . . . . . . . . . . . . . . . . .”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
The word `tenant’ includes the legal heir\/heirs of a deceased tenant and a<\/p>\n
statutory   tenant.     Kudikidappukaran   as   defined   in   the   Kerala   Land<\/p>\n
Reforms Act is specifically excluded from the definition  of tenant. Use<\/p>\n
of the words “unless the context otherwise requires” in the beginning of<\/p>\n
Section 2 of the Rent Act shows that  the definition of the word `tenant’<\/p>\n
under the Rent Act is not exhaustive.\n<\/p>\n<\/p>\n
                      107.        A perusal   of  the   various  sections   of the    Rent   Act<\/p>\n
shows   that   it   is   not   meant   to   confer   any  fixity  or     permanent   tenancy.<\/p>\n
Kudikidappukaran   as   defined   in   the   Kerala   Land   Reforms   Act   is<\/p>\n
specifically   excluded   from   the   definition   of   the   tenant   as   can   be   seen<\/p>\n
from  Section 2(6) of the Rent Act.   Second proviso to Section 11(1) of<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 118 ::\n<\/p>\n
the Rent Act makes the position very clear.<\/p>\n
             ”11. Eviction of tenants:-\n<\/p>\n
           (1) . . . . . . . .\n<\/p>\n
                                     Provided   that   nothing   contained   in   this<\/p>\n
                     section shall apply to a tenant whose landlord is<\/p>\n
                     the State Government or the Central Government<\/p>\n
                     or other public authority notified under this Act.:<\/p>\n
                                 Provided   further   that   where   the   tenant<\/p>\n
                      denies the title of the landlord or claims right of<\/p>\n
                      permanent   tenancy,   the   Rent   Control   Court<\/p>\n
                      shall decide whether the denial or claim is  bona<\/p>\n
                      fide  and if it records a finding to that effect, the<\/p>\n
                      landlord   shall   be   entitled   to   sue   for   eviction   of<\/p>\n
                      the  tenant in a Civil Court  and  such Court  may<\/p>\n
                      pass a decree for eviction on any of the grounds<\/p>\n
                      mentioned   in   this   section,   notwithstanding   that<\/p>\n
                      the Court finds that such denial does not involve<\/p>\n
                      forfeiture   of   the   lease   or   that   the   claim   is<\/p>\n
                      unfounded.” (emphasis supplied).\n<\/p>\n
\nThe Rent Act does not define the words ” permanent tenancy”.  It is to be<\/p>\n
noted that  a lease in perpetuity can be created either by an express grant<\/p>\n
or by  a presumed grant.  Normally such leases are agricultural leases or<\/p>\n
they were executed   before the commencement   of Transfer of Property<\/p>\n
Act.  It is also trite law that if the lease is silent regarding  duration of the<\/p>\n
term to create a tenancy at will it could be converted by payment of rent<\/p>\n
into   a   tenancy   from   year   to   year   or   month   to   month.     In   view   of   the<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 119 ::\n<\/p>\n
provisions contained in the second proviso to Section 11(1) of the Rent<\/p>\n
Act,   if  the  tenant  puts   forward   a   contention   of   permanent   tenancy,  the<\/p>\n
Rent   Control   Court   cannot   decide   that   issue.     The  Rent   Control   Court<\/p>\n
can only consider whether such claim is bona fide.  If   the claim is bona<\/p>\n
fide,   the   Rent   Control  Court      shall  record   a finding  to  that  effect   and<\/p>\n
direct the parties to approach a civil court.<\/p>\n
                      108.     It   is   argued   that   the   bar   is     to   claim   eviction   under<\/p>\n
Section   11(3)   of   the   Rent   Act   alone   and   the   landlord   can   maintain   an<\/p>\n
action  for  eviction  on  all  other  grounds.    It  is  true  that  Section  11(17)<\/p>\n
applies   only   to   cases   filed   under   Section   11(3)   of   the   Act.     Ground<\/p>\n
available   under   Section   11(3)   is   a   very   valuable   right.     If   eviction   is<\/p>\n
ordered under Section 11(2)(b) the tenant can deposit the arrears of rent<\/p>\n
and ask for vacating the order of eviction under Section 11(2)(c) of the<\/p>\n
Act.     Before   initiating   action   under   Section   11(4)(i)   the   landlord   is<\/p>\n
bound to give a notice.   If the tenant terminates the sub-tenancy within<\/p>\n
the   stipulated   time,  the   landlord  may  not   get   any  relief.     If   eviction   is<\/p>\n
sought on the ground of reconstruction or renovation the tenant has the<\/p>\n
first  option for re-occupation. So there is no merit in the argument that<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 120 ::\n<\/p>\n
there is no restriction to the landlord to file an application for eviction on<\/p>\n
other grounds enumerated in Section 11 of the Rent Act.<\/p>\n
                      109. Learned counsel appearing for the revision petitioners<\/p>\n
has relied on Section 106 of the Kerala Land Reforms Act and contended<\/p>\n
that   the   Legislature   has   got   every   power   to   exempt   a   tenancy<\/p>\n
arrangement     from   the   operation   of   the   Act.     Section   106   of   the<\/p>\n
K.L.R.Act deals with Special provisions relating to lease for commercial<\/p>\n
or industrial purposes.  If the lessee had constructed a building for such<\/p>\n
commercial or industrial purpose before a particular date, he shall not be<\/p>\n
liable to be evicted.   It is to be noted that the very purpose of bringing<\/p>\n
such   a   legislation   was   to   confer   fixity   of   tenure   on   the   tenants.     The<\/p>\n
K.L.R.  Act     is   meant   to   protect   the   kudikidappukars   and   tenants   from<\/p>\n
eviction  and also confer fixity of tenure. So where ever the Legislature<\/p>\n
intended   to     create  permanency  or   fixity,     provisions     were   made<\/p>\n
appropriately in the concerned Legislation.   Both laws are separate and<\/p>\n
distinct   and   operate   at   different   fields.     Moreover   interpretation   of<\/p>\n
various  provisions  of one Act cannot  be taken  as a ground  to interpret<\/p>\n
the provisions contained in the other Act.<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 121 ::\n<\/p>\n<\/p>\n
                      110.   To   understand   the   meaning   of   Section   11(17)   of   the<\/p>\n
Act, it is  also  necessary to  analyse various  provisions  of the Rent Act.<\/p>\n
Section 11 (1)  provides that a tenant shall be evicted only in accordance<\/p>\n
with   the   provisions   of   the   Rent   Act.     First   proviso   to   Section   11(1)<\/p>\n
exempts buildings  belonging to State  Government  from the application<\/p>\n
of   the   provisions   of   the   Rent   Act.       Second   proviso   to   Section   11(1)<\/p>\n
takes   away   the   jurisdiction   of   the   Rent   Control   Court   to   confer<\/p>\n
permanency   in   the   leasing   arrangements.     Section   11(2)   deals   with<\/p>\n
eviction  of a tenant  on the  ground of arrears  of rent.    Section  11(2)(b)<\/p>\n
confers power on the Rent Control Court to pass an order directing the<\/p>\n
tenant to put the landlord in possession  if the tenant wilfully fails to pay<\/p>\n
the   rent.     Section   11(2)(c)   provides   that   such   an   order   can   be   vacated<\/p>\n
provided   the   tenants   deposits   the   amount   specified   in   the   Section.<\/p>\n
Section 11(3) deals with the ground for eviction on the ground of bona<\/p>\n
fide need.   It provides that the landlord may apply to the   Rent Control<\/p>\n
Court for a direction to the tenant to put the landlord in possession of the<\/p>\n
building if he bona fide needs the building for his own occupation or for<\/p>\n
occupation of any member of his family dependent on him.  First proviso<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 122 ::\n<\/p>\n
to Section 11(3)  provides that the Rent Control Court shall not give any<\/p>\n
such   direction   if   the   landlord   has   another   building   of   his   own   in   his<\/p>\n
possession   in   the   same   city,   town   or   village   except   where   the   Rent<\/p>\n
Control Court is satisfied that for special reasons in any particular case it<\/p>\n
will   be   just   and   proper   to   do   so.     Second   proviso   to   section   11(3)<\/p>\n
stipulates  that even  if the landlord  proves  the bona  fide need, the Rent<\/p>\n
Control Court shall not pass an order of eviction, if the tenant proves that<\/p>\n
he   is   depending   for   his  livelihood   mainly  on   the  income  derived  from<\/p>\n
any  trade  or  business     carried  on  in  the   building   taken  on  rent  and   no<\/p>\n
other   suitable   building     for   such   trade   or   business   is   available   in   the<\/p>\n
locality.   The third  proviso  deals  with transfer inter vivos.   It provides<\/p>\n
that   no   landlord   shall   be   entitled   to   approach   the   Rent   Control   Court<\/p>\n
until the expiry of one year from the date of instrument.   Fourth proviso<\/p>\n
deals   with   the   transferee   of   a   landlord   after   passing   of   the   order.     It<\/p>\n
provides that if the landlord transfers or assigns his right in respect of a<\/p>\n
building   on   which   he   had   already   obtained   an   order   of   eviction,   the<\/p>\n
transferee   is   not     entitled   to   be   put   in   possession   unless   he   proves   his<\/p>\n
bona fide need.   Section 11(4)(i) of the Rent Act deals with the ground<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 123 ::\n<\/p>\n
for eviction on sub-letting.   Proviso to sub-section (i) of   Section 11(4)<\/p>\n
states   that   before   initiating   action   under   sub-section   11(4)(i),   notice<\/p>\n
intimating contravention of the condition of the lease should be given to<\/p>\n
the   tenant   and   he   should   be   given   30   days   time   to   terminate   the   sub-<\/p>\n
lease.  There is an explanation to that sub-section by which  the partition<\/p>\n
of   a   joint   family   property  and   dissolution   of  a  firm  etc  are   dealt  with.<\/p>\n
Section   11(4)(ii)   of   the   Act   confers   right     on  the   landlord  to   evict   the<\/p>\n
tenant if he uses the building in such a manner as to destroy or reduce its<\/p>\n
value   or   utility   materially   and   permanently   .     Section   11(4)(iii)   deals<\/p>\n
with   the   grounds   for   eviction   of   a   tenant     who   has   already   in   his<\/p>\n
possession  a building or who subsequently acquires  possession or puts<\/p>\n
up a building.  Section  11(4)(iv) of the Rent Act  deals with eviction on<\/p>\n
the ground of  re-construction.  That sub-section contains three provisos.<\/p>\n
First   proviso   casts   a   duty   on   the   landlord   to     reconstruct   the   building<\/p>\n
within a time frame.  Second proviso confers power on the court to issue<\/p>\n
necessary directions regarding re-construction.  Third proviso deals with<\/p>\n
the option of a tenant  to have the reconstructed building allotted to him.<\/p>\n
Section 11(4)(v) confers  a right on  the landlord to evict    a tenant  who<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 124 ::\n<\/p>\n
ceases to occupy the building for six months without  reasonable cause.<\/p>\n
Sub-section (5) deals with the right of a landlord to evict the tenant for<\/p>\n
renovation of the building.  Sub-section (6) deals with the liability of the<\/p>\n
tenant to pay enhanced rent after renovation .   Sub-section (7) provides<\/p>\n
that if the landlord of a building is a religious, charitable, educational or<\/p>\n
other   public   institution,   it   may   apply     for   eviction   of   a   tenant.     Sub-<\/p>\n
section   (8)   deals   with   additional   accommodation.     Sub-section   (9)<\/p>\n
provides   that  if   the   lease  is  for  a  specified  period,  the  landlord  cannot<\/p>\n
approach   the   Rent   Control   Court   before   the   expiry   of   such   period.   A<\/p>\n
reading   of   sub-section     (10)   shows   that   unless   the   need   is   bona   fide,<\/p>\n
direction cannot be given to the tenant to put the landlord in possession.<\/p>\n
First   proviso   to   sub-section   (10)   deals   with   the   of   additional<\/p>\n
accommodation   and   the   second   proviso   confers   power   on   the   Rent<\/p>\n
Control Court to give reasonable time to the tenant to put the landlord in<\/p>\n
possession.    Sub-section (11)  is very material  for analysing  the present<\/p>\n
case. Sub-section 11(i) reads as follows:-<\/p>\n
                                  “(11)   Notwithstanding   anything   contained<\/p>\n
                       in  sub-sections  (1)  to (10)   no  order for eviction<\/p>\n
                       or for putting the landlord in possession shall be<\/p>\n
                       passed,–\n<\/p><\/blockquote>\n
<\/blockquote>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 125 ::\n<\/p>\n<\/p>\n
                       (i)   against   any   tenant   who   is   engaged   in   any<\/p>\n
                       employment or  class  of employment notified  by<\/p>\n
                       the   Government   as   an   essential   service   for   the<\/p>\n
                       purpose of this sub-section, unless the landlord is<\/p>\n
                       himself   engaged   in   any   employment   or   class   of<\/p>\n
                       employment which  has  been  so  notified  and  the<\/p>\n
                       landlord   requires   the   building   for   his   own<\/p>\n
                       occupation; or<\/p>\n
                       (ii)……………”.\n<\/p>\n<\/p>\n
                      111.         Section   11(11)(i)     provides   that   if   the   tenant   is   an<\/p>\n
employee  or  class   of  employment    notified   by  the  Government  for  the<\/p>\n
purpose  of section (11)(i), he cannot be evicted for any of the grounds<\/p>\n
mentioned in sub-sections (1) to (12).  Section 11(11) (ii) provides that if<\/p>\n
the building was let out for use as an educational institution recognised<\/p>\n
by the Government or any authority empowered by them in that behalf,<\/p>\n
the tenant of that building is not liable to vacate or surrender possession<\/p>\n
so   long   as   such   recognition   continues.       It   is   to   be   noted   that   every<\/p>\n
Government   employee   is   not   entitled   to   claim   the   benefit   conferred<\/p>\n
under that sub-section.   He must be engaged in an employment notified<\/p>\n
as  an   essential   service   for  the   purpose   of  section  11(11)(i).     So  unless<\/p>\n
these three conditions are satisfied, the tenant is not entitled to resist an<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 126 ::\n<\/p>\n
action for eviction under this sub-section.   A reading of sub-section (11)<\/p>\n
of   Section   11   shows   that   this   particular   benefit   can   be   claimed   by   a<\/p>\n
tenant   only   so   long   as   he   continues   in   any   employment   or   class   of<\/p>\n
employment notified by the Government as an essential service for the<\/p>\n
purpose of this section.   Sub-section (12) deals with the right of a tenant<\/p>\n
to approach the Rent Control Court for restoration of possession of the<\/p>\n
building   from   which   he   was   evicted   on   the   ground   of   bona   fide<\/p>\n
occupation.   Sub-section (12) provides that if a landlord who   obtained<\/p>\n
possession of  a building in pursuance of an order passed by sub-section<\/p>\n
(3) does not   occupy it within the prescribed time limit, the tenant  can<\/p>\n
approach   the   Rent   Control   Court   for   an   order   of   restoration   of<\/p>\n
possession.  Sub-section (13) provides that if the tenant fails to apply for<\/p>\n
possession under sub-section (12)     the competent authority   shall have<\/p>\n
the power to allot the building for the occupation of any of the officers<\/p>\n
or   persons   specified   in   sub-section   (3)   of   section   4.     Proviso   to   that<\/p>\n
section says that the provision in that sub-section will not be applicable<\/p>\n
to buildings for which the monthly rent does not exceed fifteen rupees.<\/p>\n
Sub-section (14) confers power on the Rent Control Court to  direct the<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 127 ::\n<\/p>\n
landlord to pay compensation.   Sub-section (15) provides that even after<\/p>\n
the   dismissal   of   the   petition   filed   by   the   landlord,   the   tenant   shall<\/p>\n
continue subject to the provisions of the Rent Act and the landlord can<\/p>\n
evict   the   tenant   only   on   establishing   one   or   more   of   the   grounds<\/p>\n
mentioned in sub-sections (2) to (8).\n<\/p>\n<\/p>\n
                      112.     A   reading   of   sub-section   (17)   shows   that   it   is   an<\/p>\n
exception   to   Section   11(3).         The   primary   and   foremost   task   of<\/p>\n
interpreting a statute is to ascertain the intention of the legislature, actual<\/p>\n
or imputed.     The court must then strive to so interpret the statute as to<\/p>\n
promote and advance the object and  purpose of the   Act.       In  V.F. &<\/p>\n
G.Insurance   Co.  v.  M\/s.  Fraser   and   Ross   (A.I.R.1960     S.C.   971)    the<\/p>\n
Supreme Court has held as follows:-\n<\/p>\n<\/p>\n
                                “It   is   well   settled   that   all   statutory<\/p>\n
                     definitions or abbreviations must be read subject<\/p>\n
                     to   the   qualification   variously   expressed   in   the<\/p>\n
                     definition clauses which created them and it may<\/p>\n
                     be   that   even   where   the   definition   is   exhaustive<\/p>\n
                     inasmuch as the word defined is said to mean a<\/p>\n
                     certain thing, it is possible for the word to have a<\/p>\n
                     somewhat different meaning in different sections<\/p>\n
                     of   the   Act   depending   upon   the   subject   or   the<\/p>\n
                     context.     That   is   why  all   definitions   in   statutes<\/p>\n
                     generally   begin   with   the   qualifying   words<\/p>\n
                     namely, unless there is anything repugnant in the<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 128 ::\n<\/p><\/blockquote>\n
\n
                     subject or context.  In view of this qualification,<\/p>\n
                     the  Court has not  only to look  at the words but<\/p>\n
                     also   to   look   at   the   context,   the   collocation   and<\/p>\n
                     the object of such words relating to such matter<\/p>\n
                     and   interpret   the   meaning   intended   to   be<\/p>\n
                     conveyed   by   the   use   of   the   words   under   the<\/p>\n
                     circumstances.”\n<\/p><\/blockquote>\n
<\/blockquote>\n
In  M\/s.Girdhari   Lal   &   Sons   v.   Balbirnath   (A.I.R.   1986   S.C.1499)  the<\/p>\n
Apex Court held as follows:-\n<\/p>\n<\/p>\n
                                 “The primary and foremost task of a court<\/p>\n
                      in   interpreting   a   statute   is   to   ascertain   the<\/p>\n
                      intention   of   the   legislature,   actual   or   imputed.<\/p>\n
                      Having ascertained the intention, the Court must<\/p>\n
                      then strive to so interpret the statue as to promote<\/p>\n
                      and   advance   the   object   and   purpose   of   the<\/p>\n
                      enactment.  For this purpose, where necessary the<\/p>\n
                      court   may   even   depart   from   the   rule   that   plain<\/p>\n
                      words   should   be   interpreted   according   to   their<\/p>\n
                      plain meaning.   There need be no meek and mute<\/p>\n
                      submission to the plainness of the language.”<\/p>\n<\/blockquote>\n
In    Imad   Ali  v.  Keshav  Chand<\/a>  [(2003)4   SCC  635]  the   Supreme  Court<\/p>\n
held that the Rent Act is not only enacted    for the benefit of the tenant<\/p>\n
but also for the benefit of the landlord and therefore the provisions of the<\/p>\n
Act have to be harmoniously interpreted.     It was held that  inheritance<\/p>\n
or assignment does not confer any better title than his predecessor.<\/p>\n
                      113.   Learned   counsel   appearing   for   the   petitioners<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 129 ::\n<\/p>\n
strenuously   argued that the expression  ‘tenant’   used   in Section 11(7)<\/p>\n
must     not   be     given   a   restricted   meaning   than   the   one   ascribed   to   the<\/p>\n
expression in the definition of the said expression under Section 2(6) of<\/p>\n
the Rent Act.  It is argued that it is for the Legislature either to confer or<\/p>\n
take away the power of a particular class of persons and in this case, the<\/p>\n
Legislature has not thought it fit to curtail the right available to the legal<\/p>\n
heir of a tenant.  It is argued that by restricting the scope of the right of a<\/p>\n
legal   heir   of   a   tenant,   the   court   is   usurping   on     the   legislative   power.<\/p>\n
Learned   counsel     for   the   petitioners   relied   on   a   decision     reported   in<\/p>\n
Damadilal v. Parashram (A.I.R.1976 S.C.<\/a> 2229) in which it was held that<\/p>\n
there   is   no   distinction   between   a   contractual   tenant   and   a   statutory<\/p>\n
tenant.   In that  case,       the Supreme Court   was considering  whether a<\/p>\n
statutory tenant   had heritable interest   in the tenancy arrangement.       It<\/p>\n
was     held   that  there   is   absolutely   no   distinction   between   a  contractual<\/p>\n
tenant   and   a   statutory   tenant   and   whatever   rights   available   to   a<\/p>\n
contractual tenant are available to a statutory tenant also.   A reading of<\/p>\n
the definition of the word ‘tenant’ in Section 2(6) of the Rent Act  shows<\/p>\n
that tenant includes statutory tenant  also.   So the principle laid down in<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 130 ::\n<\/p>\n
Damadilal’s   Case  (supra)   can   have   no   application   to   the   facts   of   this<\/p>\n
case.\n<\/p>\n<\/p>\n
                      114.   Learned   counsel   relied   on   a   decision   of   the<\/p>\n
Constitution Bench reported in Gain Devi v. Jeevan Kumar (A.I.R. 1985<\/p>\n
S.C.796) in which the Supreme Court   has considered   whether there is<\/p>\n
any distinction between a statutory tenant and a contractual tenant under<\/p>\n
the provisions  of   Delhi Rent Control Act.     It is   held that a   a tenant<\/p>\n
even after   termination of the tenancy continues to to have an estate or<\/p>\n
interest in the tenanted premises and the tenancy rights both in respect of<\/p>\n
residential premises and commercial premises are heritable.   It is     held<\/p>\n
that the  heirs of  a deceased statutory tenant are also entitled to the same<\/p>\n
protection available to a contractual tenant.   The principle laid down in<\/p>\n
that decision can have no application to the facts of this case.<\/p>\n
                      115.     In  Gantusa   H.Baddi   v.  Meerabai   G.Pai<\/a>  [(2000)   4<\/p>\n
S.C.C.586], the Karnataka High Court took the view that a tenancy right<\/p>\n
in respect of a non-residential premises under the Karnataka Rent Act is<\/p>\n
not     heritable.       The     Supreme   Court   after   interpreting   the   various<\/p>\n
provisions of the Act held that in the absence of any contrary provisions<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 131 ::\n<\/p>\n
in the Act, it must be held that  the tenancy in respect of a non-residential<\/p>\n
premises   is   also heritable.   That decision also can have no application<\/p>\n
to the facts of the case.\n<\/p>\n<\/p>\n
                      116.  A reading    of the  various  decisions  referred  to above<\/p>\n
and   relied  on by the learned  counsel  for the revision petitioner shows<\/p>\n
that   those   decisions   are   not   rendered     after   considering   a     provision<\/p>\n
similar to Section 11(17) of  the Kerala Rent Control Act but considering<\/p>\n
the   meaning   of   the   word   `tenant’     under     the   Rent   Control   Acts   of<\/p>\n
Madhya Pradesh, Delhi and Karnataka.   Counsel for the petitioners has<\/p>\n
no   case   that   any   of   those   Acts   contains   a   provision   similar   to   that   of<\/p>\n
Section 11(17) of the Rent Act.  The Apex Court was not called upon to<\/p>\n
consider a similar provision.  So the decisions referred to by counsel for<\/p>\n
the petitioners are not helpful in deciding the issue raised in the case.<\/p>\n
                      117.   Learned   counsel   appearing   for   the   petitioners   refers<\/p>\n
also   to     a   decision   reported   in  George   Peter  v.  Sali  (I.L.R.   1999(1)<\/p>\n
Kerala 529).  A Division Bench of this Court held that by virtue of  the<\/p>\n
inclusive definition of the tenant,  the legal representatives of a deceased<\/p>\n
tenant  have got all the rights   a  tenant has including the right to move<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 132 ::\n<\/p>\n
the Rent Control Court for an order directing that they shall be restored<\/p>\n
to   possession   of   the   building   under   Section   11(12)   of   the   Rent   Act.<\/p>\n
The correctness or otherwise of that decision need not be considered in<\/p>\n
this case.   A reading of Section   11(12) of the Rent Act shows that the<\/p>\n
tenant  has  got  a  right   to  seek      restoration  of  possession.     Sub-section<\/p>\n
(13)   shows   that   if   the   tenant   fails   to   seek   restoration,   the   competent<\/p>\n
authority  can   allot   the   building   to   the   officers   mentioned  in   that     sub-<\/p>\n
section.   So the intention of the Legislature is very clear.   If a landlord<\/p>\n
evicts  a tenant  on  the  ground  of   bona  fide  own    occupation  and  if  he<\/p>\n
fails  to  occupy  the  same, the   building  can  be  allotted  to   other   tenants.<\/p>\n
The   principle   laid       in   George   Peter’s   Case   is   also   of   no   help   to   the<\/p>\n
petitioners in this case.\n<\/p>\n<\/p>\n
                      118.   Another   decision     relied   is    Viswanathan  v.  Abdul<\/p>\n
Hameed     (2000(3) K.L.T.712).   In this case, a Division Bench of   this<\/p>\n
Court held that   in order to attract the provisions  of   Section  11(17) of<\/p>\n
the Rent Act, what is needed is only  continuous occupation as a tenant.<\/p>\n
It is true that in that case, Division Bench held that legal representatives<\/p>\n
of the  tenant who  was in occupation  of the  building    from 14-10-1933<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 133 ::\n<\/p>\n
till his death were not liable to be evicted on the ground available under<\/p>\n
Section 11(3) of the Rent Act.  Whether the benefit conferred on a tenant<\/p>\n
under   Section   11(17)   was     a   privilege   or   a   right   was   not   raised   and<\/p>\n
considered in that case.  The Bench proceeded as if it is admitted that it<\/p>\n
is     a   right   which   could     be   inherited     by   the   legal   heirs   also.     The<\/p>\n
principle laid down in Viswanathan’s Case (supra) was considered by the<\/p>\n
Full Bench in  Narayanan’s Case.  But the Full Bench did not follow the<\/p>\n
principle   laid   down   in   that  decision.       It   may   also   be   noted   that   in<\/p>\n
Viswanathan’s  Case  (supra)  what  the  Bench  mainly dealt   with  was   the<\/p>\n
requirement of  continuous occupation.\n<\/p>\n<\/p>\n
                      119.  Learned  counsel  also  relied  on a  decision  reported   in<\/p>\n
Raghavan  v.  Valsaraj<\/a>    (2004(3) K.L.T. 134) where a Division Bench of<\/p>\n
this  Court had considered    whether  the execution  of a fresh lease deed<\/p>\n
between   the   landlord   and   the   tenant   after   1-4-1940   will   extinguish   or<\/p>\n
disrupt the tenancy.  It was held that it will not extinguish or disrupt the<\/p>\n
tenancy.   The question whether the benefit conferred on a tenant under<\/p>\n
Section 11(17) of the Rent Act is a  right  which is heritable by the  heirs<\/p>\n
or a privilege   which will come to an end on account of the death of a<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 134 ::\n<\/p>\n
tenant who has been in continuous  occupation of the building from 1-4-<\/p>\n
1940   was   not   raised   and   considered   by   the   Division   Bench.       So   the<\/p>\n
principle   laid   down   in  Raghavan’s   Case          is   also   of   no   help   to   the<\/p>\n
petitioners.\n<\/p>\n<\/p>\n
                      120.   Learned   counsel   for   the   petitioners   also   relied   on   a<\/p>\n
decision   reported   in  Karthiayani  v.  Anandan<\/a>  (2004(2)   K.L.T.575),<\/p>\n
wherein   a   Division   Bench   of   this   Court   held   that   a   legatee   under   a<\/p>\n
testamentary disposition cannot claim the status of a statutory tenant and<\/p>\n
resist the claim for eviction unless the legatees are natural heirs.   It was<\/p>\n
held that   the tenant includes the heir or heirs of a deceased tenant   but<\/p>\n
not a legatee under a will.  It was further held that the word heir has to be<\/p>\n
decided in accordance with the personal law   of the tenant and hence a<\/p>\n
legatee will not come within the definition of Section 2(6)(i) of the Rent<\/p>\n
Act.     The   principle   laid   down   in   that   decision   also   can   have   no<\/p>\n
application to the facts of this case.\n<\/p>\n<\/p>\n
                      121. A reading of Section 11(17) of the Rent Act shows that<\/p>\n
to   resist   an   action   for   eviction   with   the   aid   of   provision   of   this   sub-<\/p>\n
section   the   tenant   must   prove   three   facts:   (i)     that   he   came   into<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 135 ::\n<\/p>\n
occupation of the building prior to 1-4-1940; (ii)  that  occupation from<\/p>\n
1-4-1940   is     as   a   tenant   and   (iii)   that   he   has   been   in   continuous<\/p>\n
occupation   of   the   building   from   that   date.     So   unless   the   tenant<\/p>\n
establishes that he started his occupation of the building as a tenant on<\/p>\n
1-4-1940, he will not get that benefit even if it is proved that   he came<\/p>\n
into occupation of the building prior to 1-4-1940.<\/p>\n
                      122.   The   words   ‘occupation’   and   `possession’   are   not<\/p>\n
synonymous.    In   Muhammed   v. Abdul Rahiman (1983 K.L.T.874)   a<\/p>\n
learned Single Judge of this Court held that   occupation and possession<\/p>\n
are not  synonymous  terms.   One  may possess  land  or building  without<\/p>\n
occupying   the   same.       In    Mathai  Antony  v.  Abraham<\/a>   (2004(3)<\/p>\n
K.L.T.169)   also   a   Division   Bench   of   this   Court     considered   the<\/p>\n
difference   between   occupation   and   possession.       It   was   held   that     the<\/p>\n
word   “possession”   means     holding   of   such   possession.   Animus<\/p>\n
possidendi,   means,   the   intention   to   exclude   other   persons.     The   word<\/p>\n
“occupy”   has   to   be   given   a   meaning   so   as   to   hold   that   the   tenant   is<\/p>\n
actually   using   the   premises   and   not   mere   physical   presence   or<\/p>\n
possession.  In Ram Dass v. Davinder<\/a>  [(2004) 3 SCC 684] the Supreme<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 136 ::\n<\/p>\n
Court   has   held   that   in   common     parlance   the   words  ‘possession’   and<\/p>\n
‘occupation’   may   be   used   interchangeably   but   in   law   “possession”<\/p>\n
amounts to holding the  property as an owner, while “occupy”  is to keep<\/p>\n
possession by being present in it. In the case at hand it is admitted that<\/p>\n
from   1973   till   1978   the   widow   of   A.M.Velayudhan   alone   was   in<\/p>\n
occupation.   It is also   admitted that from the year 1978   4th  respondent<\/p>\n
alone     is   in   occupation.     The   original   tenant   had   left   widow   and   7<\/p>\n
children.   Can it be said that occupation  of the building by one among<\/p>\n
them is occupation of all the  heirs?   Respondents 1 to 3 and 5 to 7  may<\/p>\n
have  possession   of the   building  but   they are  not    in   occupation  of  the<\/p>\n
same.     In H.C.Pandy v. G.C.Paul (A.I.R.1989 S.C.<\/a> 1470)   it was held<\/p>\n
that legal heirs of original tenant succeed to  tenancy as joint tenants.  It<\/p>\n
is the single tenancy which devolves on the heirs.<\/p>\n
                      123.  A discussion of the various provisions of Section 11 of<\/p>\n
the Rent Act shows that it deals with  rights as well as privileges.  A Full<\/p>\n
Bench  of  this  Court  has   considered   the  meaning  of  the  words   “rights”<\/p>\n
and   “privileges”   in    Bhaskaran  v.  Additional  Secretary<\/a>  (1987(2)<\/p>\n
K.L.T.903). It was held as follows:-\n<\/p>\n
\nC.R.P.NO.2012\/01<\/p>\n
                                                            :: 137 ::\n<\/p>\n
                                 “Where   there   is   a   right,   there   is   a   duty.\n<\/p>\n
                     Where   it   is   only   a   privilege,   it   is   only   liberty<\/p>\n
                     without   any   corresponding   duty.     Privilege<\/p>\n
                     provides   an   opportunity   to   choose   among<\/p>\n
                     alternatives.     Privilege   can   be     the  dispensation<\/p>\n
                     of  a  bounty, a   conferment   of  a   personal  benefit<\/p>\n
                     or advantage, a sanction of immunity or the grant<\/p>\n
                     of   an   exemption.     Privilege   is   thus   essentially<\/p>\n
                     discretionary.     It   may   or   may   not   be   granted.<\/p>\n
                     Privilege has thus no compulsive element and is<\/p>\n
                     thus not judicially enforceable.”\n<\/p>\n<\/p>\n
                       124.  A reading of the provisions of the Rent Act will show<\/p>\n
that   it   is   not   meant   to   confer     fixity   or   permanency   on     tenancy<\/p>\n
arrangement.     It   only   intended   to   regulate   the   leasing   of   the   buildings<\/p>\n
and   to   control   the     rent   and   to   protect   the   tenant   from   unreasonable<\/p>\n
eviction.  Section 11(11) of the Rent Act  will show that in certain cases,<\/p>\n
the  Legislature has  intended  to give a benefit or privilege  to a class  of<\/p>\n
employees  covered  by the said  section.   Viewed from that context, the<\/p>\n
only inference possible is by introducing section 11(17) the Legislature<\/p>\n
wanted to  confer a privilege on a tenant who came into occupation of a<\/p>\n
building  from eviction provided he is in continuous occupation from 1st<\/p>\n
April 1940.   That can only be a personal right.  The privilege conferred<\/p>\n
to such a tenant cannot be equated to a right  which could be inherited.<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 138 ::\n<\/p>\n<\/p>\n
                        125.     In O.P.No.1045  of 1962, a learned Single Judge of<\/p>\n
this Court had considered the scope and ambit of Section 11(17) of 1959<\/p>\n
Act.   It was held that it is a benefit given to a tenant who was inducted<\/p>\n
into possession   prior to 1-4-1940 and continued to be in possession on<\/p>\n
the date of proceedings for eviction. It was held as follows:-<\/p>\n
                                 “The Section that defines the term “tenant”<\/p>\n
                     is  irrelevant     for   construing   the   scope   of   section<\/p>\n
                     11(17).  All that the definition in section 2(6) says<\/p>\n
                     is  that the surviving  spouse,  any son  or daughter<\/p>\n
                     of a deceased tenant who had been living with the<\/p>\n
                     tenant in the building as a member of the tenant’s<\/p>\n
                     family,   shall   be   deemed   to   be   a   tenant.     I   am<\/p>\n
                     unable   to   understand   how   this   definition   either<\/p>\n
                     helps or is against the landlord.   It appears to me<\/p>\n
                     that  in   cases   where   a   tenant   is   not   able   to  prove<\/p>\n
                     that   he   has   been   in   continuous   occupation   of   a<\/p>\n
                     building from 1st  April, 1940, sub-section (17)  of<\/p>\n
                     Section 11 would have no application.”<\/p>\n<\/blockquote>\n
The   principle   laid   down   in   O.P.No.1045   of   1962   was   approved   and<\/p>\n
relied on  by a Division  Bench  in an unreported  decision  in  Sarojini  v.<\/p>\n
Safia  (C.R.P.Nos. 2107 and  2108  of 1992).   The Bench noted  that the<\/p>\n
provisions  of  Section  11(7)  in  1959  Act  and  present  Act  are the  same<\/p>\n
and  held as follows:-\n<\/p>\n<\/p>\n
                      “….We   are   of   the   view   that   the   benefit   of   the<\/p>\n
           protection under S.11(17) is available only to the tenant<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 139 ::\n<\/p>\n
           who was inducted into possession prior to the date and<\/p>\n
           continued   to   be   in   possession   on   the     date   of<\/p>\n
           proceedings   for   eviction   and   his   legal   representatives,<\/p>\n
           who came into the category of tenants  by virtue of the<\/p>\n
           inclusive   definition   in   S.2(6)   of   the   Act   cannot   claim<\/p>\n
           the   protection.     In   the   instant   case,   the   present<\/p>\n
           occupants   admittedly   are   the   legal   representatives   of<\/p>\n
           deceased   Raghavan   the   original   tenant   and   they   came<\/p>\n
           into  possession  after his  death.    They therefore  cannot<\/p>\n
           claim the benefit of S.11(17)”.\n<\/p>\n<\/p>\n
                      126.   In  Prasanna  v.  Haris  [2005(2)K.L.T.365]   another<\/p>\n
Division Bench of this Court also considered the scope of Sections 2 (6)<\/p>\n
and   11(17) of the Rent Act.   It was held that the word tenant includes<\/p>\n
the  heirs of a deceased tenant.  It was held as follows:-<\/p>\n
                                   “The  definition   of   `tenant’   in   the   Kerala<\/p>\n
                      Act  makes   no   room   for   doubt  in   this   regard  and<\/p>\n
                      the   tenant   and   heirs   of     the   statutory   tenant   can<\/p>\n
                      also claim all the benefits available to the original<\/p>\n
                      tenant. ”<\/p>\n
 Regarding the protection claimed under Section 11(17) of the Rent Act<\/p>\n
it was held as follows:-\n<\/p><\/blockquote>\n
<\/blockquote>\n
                       “For getting  the   benefit  under   S.11(17),   one  has<\/p>\n
            to   be   in   possession   of   the   building   before   1940   as     a<\/p>\n
            tenant.\n<\/p><\/blockquote>\n<\/blockquote>\n
           . …….       . . . . ..      . . . . . . . . . .<\/p>\n
\n<\/blockquote>\n
           Further,   no   documentary   or   admissible   evidence   was<\/p>\n
            adduced   by   the   tenant   to   show   that   even   the   original<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 140 ::\n<\/p><\/blockquote>\n
\n
            tenant   was   in   continuous   occupation   of   the   building<\/p>\n
            before   1940.     Production   of   a   calendar,   without   any<\/p>\n
            details   cannot   establish   that   he   was   in   continuous<\/p>\n
            occupation of the building from a date anterior to 1940<\/p>\n
            till the date of the petition.”\n<\/p><\/blockquote>\n
<\/blockquote>\n
It was also held that the protection under section 11(17) of the Rent Act<\/p>\n
can  be claimed only by a  tenant  who  was  in occupation  on  or prior  to<\/p>\n
1-4-1940 and  cannot be claimed by his heir who succeeds   the original<\/p>\n
tenant   after   1940   as   it   was   a   personal   right   of   the   tenant   who   was   in<\/p>\n
occupation of the building.\n<\/p>\n<\/p>\n
                      127. A reading  of the various  provisions  of the  Act shows<\/p>\n
that  a  tenant   includes  a  contractual   tenant  and   a  statutory  tenant  .  The<\/p>\n
heirs   of   a   statutory   tenant   are   also   entitled   to   inherit     all   rights   of   the<\/p>\n
tenant. But to claim protection under Section 11(17) of the Rent Act,  it<\/p>\n
must be shown that the tenant came into  occupation of the building as a<\/p>\n
tenant prior to 1940  and he has   been     in continuous occupation  since<\/p>\n
then.     If the tenancy started long prior to 1940 and if the original tenant<\/p>\n
died prior to 1940, his   heirs who came into occupation of the building<\/p>\n
prior to  1940  are also entitled to claim protection provided they satisfy<\/p>\n
the  other   requirements of the sub  – section.       There is no question of<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 141 ::\n<\/p>\n
giving   any   restricted   meaning   to   the   word   `tenant’.     If   the   person<\/p>\n
occupied a  rented building as a tenant as defined in the Rent Act prior to<\/p>\n
the cut off date and he has been in continuous occupation of the same, he<\/p>\n
is  entitled  to claim privilege  conferred on him under Section  11(17)  of<\/p>\n
the   Rent   Act.     But   the   protection   provided   under   Section   11(17)   is   a<\/p>\n
personal  privilege  available to  the tenant  who came into  occupation  of<\/p>\n
the building on 1-4-1940 and has been in continuous occupation  of the<\/p>\n
same.\n<\/p>\n<\/p>\n
                      128. The next question to be considered is whether there is<\/p>\n
any   difference   between   the   death   of   the   tenant   prior   to   the<\/p>\n
commencement of the Rent Act and after the commencement of the Act.<\/p>\n
The   question   of   inheritance   is   not   decided   in   accordance   with   the<\/p>\n
provisions   of     Rent   Act.     The   Rent   Act   does   not   create   any   new   rule<\/p>\n
regarding succession of the estate of the deceased tenant.  It is  governed<\/p>\n
by the provisions of the Transfer of Property Act and by the personal law<\/p>\n
applicable  to  parties.  If on the date of death of a tenant, he had a right<\/p>\n
or   estate   in   the   tenancy,   that   right   will   be   inherited   by   his   heirs<\/p>\n
irrespective  of the  date  of death.        Whether  the tenant  dies  before    or<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 142 ::\n<\/p>\n
after   1965     will   not   make   any   difference.         But   if   it     is   a   personal<\/p>\n
privilege, it   will come to an end by the death  of a person who  was in<\/p>\n
occupation  as    a tenant   from 1-4-1940.   In Narayanan’s Case,  the Full<\/p>\n
Bench has considered the issue   and held that the benefit conferred on a<\/p>\n
tenant under Section 11(17) of the Rent Act  is a personal right or benefit<\/p>\n
conferred   on   a   tenant   and   not   a   right.   If   the       tenant   who   came   into<\/p>\n
occupation prior to 1940  dies after that date his heirs will not inherit the<\/p>\n
benefits   conferred   on   the   deceased   tenant   under   Section   11(17)   of   the<\/p>\n
Rent Act. The principle laid down in Narayanan’s Case (supra) does not<\/p>\n
suffer   from   any   infirmity   which     warrants     re-consideration.     The<\/p>\n
principle   laid   down   in                       Narayanan’s   Case  does   not   require   any<\/p>\n
reconsideration.\n<\/p>\n<\/p>\n
                      129.  The  question referred is answered as above and  case<\/p>\n
is sent back to the  Bench which referred to decide the rest of the issues<\/p>\n
on facts   in accordance with law.\n<\/p>\n<\/p>\n
                                                                                           Sd\/-\n<\/p>\n
                                                                                 K.Padmanabhan Nair,<\/p>\n
                                                                                             (Judge)<\/p>\n
C.R.P.NO.2012\/01<\/p>\n
                                                            :: 143 ::\n<\/p>\n
                                      Order of the Court<\/p>\n
                 130.   In view of the majority opinion,  the Full Bench decision<\/p>\n
in  Narayanan v. Shalima,<\/a> 2003 (2) KLT 317, lays down the correct law<\/p>\n
and would need only to be confirmed.  The question referred is answered<\/p>\n
as   above  and  the   case   is   sent   back   to   the   Bench   which   referred   the<\/p>\n
matter, to decide the rest of the issue on facts in accordance with law.<\/p>\n
                                                                                            Sd\/-\n<\/p>\n
                                                                                         V.K.Bali,<\/p>\n
                                                                                    Chief Justice.\n<\/p>\n<\/p>\n
                                                                                            Sd\/-\n<\/p>\n
                                                                                K.A. Abdul Gafoor,<\/p>\n
                                                                                         Judge.\n<\/p>\n
\n                                                                                            Sd\/-\n<\/p>\n
                                                                                 Kurian  Joseph,<\/p>\n
                                                                                        Judge.\n<\/p>\n
                                                                                            Sd\/-\n<\/p>\n
                                                                            K. Balakrishnan Nair,<\/p>\n
                                                                                         Judge.\n<\/p>\n
\n                                                                                            Sd\/-\n<\/p>\n
                                                                           K. Padmanabhan Nair,<\/p>\n
                                                                                        Judge.\n<\/p>\n
\nDK.\n<\/p>\n
                                            (True copy)<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court A.M. Prabhakaran vs Chithappa Sulaikabi on 9 February, 2007 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-199713","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nA.M. Prabhakaran vs Chithappa Sulaikabi on 9 February, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/a-m-prabhakaran-vs-chithappa-sulaikabi-on-9-february-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"A.M. 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