Kerala Buildings (Lease & Rent Control) Act | S.11(3) Does Not Apply When Landlord Obtains Vacant Possession After Eviction Petition: High Court

The Kerala High Court on Wednesday laid down that the first proviso to Section 11(3) Kerala Buildings (Lease and Rent Control) Act, 1965 ('Act, 1965') does not apply to situations where the landlord obtains vacant possession of a building after the institution of the eviction petition. 

The first proviso to Section 11(3) restricts the power of the Rent Control Court in issuing an order directing the tenant to put the landlord in possession of the building, if the landlord has another building of his own in possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular case it will be just and proper to do so, and not in a manner conferring benefit on the tenant.

The Division Bench comprising Justice P.B. Suresh Kumar and Justice Johnson John reasoned that, 

"...a landlord who establishes the bona fides of the need for occupation of a tenanted premises and who does not have another building in his possession as on the date of institution of the eviction petition and obtains an order of eviction on that basis, the fate of the order of eviction would depend on the question whether he obtains possession of any other building till the order has become final. In other words, if the tenant in the proceedings is able to prolong the proceedings by hook or crook, the landlord would be deprived of the benefit of the order of eviction". 

It went on to add that yet another reason for the same was that:

"...a landlord who rents out different premises to different tenants, should certainly have the option to seek eviction of a premises which is convenient for him for the purpose the eviction is sought and the tenant cannot have a say at all on that matter, especially when several factors such as the rent received from the tenants occupying other building/buildings, convenience, the relationship with the tenant etc. goes into the mind of the landlord while exercising that option. Once a decision is taken to institute the eviction petition against a particular tenant, if another tenant vacates, it will be for the landlord to decide whether he should occupy the premises which fell vacant. The landlord after having made a preference, cannot be forced to occupy the premises which fell vacant subsequently". 

The tenant, who was the revision petitioner in this case, had surrendered the floor of the building he was occupying on the request of the landlord, and was using an adjacent building as a godown for his products. During this time, it was submitted that the landlord instituted an eviction petition on the ground that he needed the premises for establishing other businesses.

The tenant disputed the same on the ground that the need set out by the landlord was not bona fide. The Rent Control Court however rejected the claim and ordered eviction of the tenant. 

During the pendency of the appeal against the same, another floor held by another tenant of the landlord fell vacant. 

On the petitioner's applications for appointment of an Advocate Commissioner to ascertain the fact, the Appellate Authority dismissed the same and affirmed the Rent Control Court's decision.

It is on being aggrieved by the same that the present revision petition was filed. 

Apart from contending that the landlord lacked bona fides, the counsel for the revision petitioner also submitted along the lines of the first proviso to Section 11(3) of the Act which precludes the Rent Control Court from granting an order of eviction unless it is satisfied that it is just and proper to do so for special reason.

It was argued that, if the landlord had another building of his own in his possession in the same city, the Appellate Authority ought to have considered whether the fact that the first floor of the building which fell vacant during the pendency of the appeal had any impact on the relief claimed by the landlord. 

The Court however found merit in the argument advanced by the counsel for the landlord that there was no material to indicate that the vacant possession of the second floor of the building was sought by the landlord from the tenant for the needs set out in the eviction petition.

It added that the conduct of the landlord in not occupying the subsequently vacant first floor of the building was not one that would eclipse the need propounded by the landlord. 

The Court expressed its doubt as to how a fact which was not even in the contemplation of the landlord on the date of institution of the eviction petition, would affect the bona fides of the need set out by him.

"If the need set out is found to be bona fide as on the date of institution of the eviction petition, the same will not begone on account of a subsequent event. Needless to say, the arguments advanced based on the subsequent event pointed out by the tenant necessarily fail," it held. 

Regarding the contention of the revision petitioner that the landlord ought to have established special reasons for not occupying the first floor of the building, the Court observed that the landlord has no obligation to plead that he/she does not have another building of his/her own in the same city, town or village, but that if it is shown that the landlord has another building of his own in his possession in the same city, town or village, it woud be obligatory for the landlord to show special reasons for not occupying the same for the proposed need.

The Court was of the considered view that the first proviso to Section 11(3) would have no application where a landlord obtains another building after the institution of the eviction petition. 

It noted that if the provision were to be interpreted such that it would apply to all buildings, the possession of which is obtained by the landlord until the eviction order becomes final, in cases where landlords have other buildings which are occupied by tenants, every time there arises a vacant possession of one of such buildings, he/she would owe to the court, an explanation as to the special reason for not occupying the same for the need proposed in the eviction petition. 

In the view of the Court, the aforesaid could not have been the legislative intent behind the statute. 

For the reasons aforementioned, the revision petition was thus dismissed by the Court, which allowed the tenant six months time to surrender vacant possession of the premises, subject to undertakings given before the rent control court and clearing all arrears of rent. 

Counsel for the Revision Petitioner: Advocates Jacob P. Alex, Joseph P. Alex, Manu Sankar P., Amal Amir Ali

Counsel for the Respondents: Advocates Jacob Mathew Manalil, Thomstine K. Augustine, Priya Elizabeth Babu, Hrishikesh Jayasraman, and S.V. Balakrishna Iyer

Citation: 2023 LiveLaw (Ker) 699

Case Title: Lalu Mathew v. Bino Alexander 

Case Number: R.C. Rev. No. 104 of 2023

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