Landlords Exempted From Kerala Rent Control Act Free To Waive Such Benefit: High Court

The Kerala High Court recently held that landlords who are exempted from application of all or any of the provisions of the Kerala Building (Lease and Rent Control) Act, 1965 are free to waive such exemption.

The Division Bench comprising Justice P.B. Sureshkumar and Justice C.S. Sudha held that the exemption granted under Section 25 of the Act is a 'privilege' which the landlords may waive. It observed: 

"...a notification under Section 25 has been issued by the Government by which certain building or class of buildings have been taken out of the purview of the Act. Therefore it is a benefit or privilege that has been extended or given to the landlords or owners of such buildings, which they are free to waive".

It further found that the said provision does not take away the jurisdiction of the Rent Control Court (hereinafter 'RCC') to entertain an application filed by the landlords of the buildings exempted by the notification issued under Section 25. 

The brief factual matrix of the case would indicate that the petitioner-landlord (Sharaful Islam Madrassa), had moved the RCC for eviction of the respondent-tenant (also the revision petitioner herein). The RCC allowed the petition subsequent to which the respondent-tenant filed an appeal before the Rent Control Appellate Authority, which confirmed the said order of eviction. It is aggrieved by the same that the instant revision petition was filed.

It was argued by Advocates R. Parthasarathy and Seema on behalf of the respondent-tenant/revision petitioner that the RCC had no jurisdiction to entertain the RCP in the light of the notification issued under Section 25 of the Act by which Madrassas have been exempted from the provisions of the Act, and that a civil court ought to have been moved instead.

Senior Advocate T. Krishnanunni, and Advocates M. Devesh, K.C. Kiran, Meena A., Saju S.A., Vinod Ravindranath, and Vinay Mathew Joseph, on behalf of the petitioner-landlord on the other hand, contended that the exemption granted under Section 25 of the Act is a privilege or benefit which could be waived by the landlord concerned.

The Court analyzed the objective and purpose behind the enactment of the statute and observed,

"The Rent Control Act is a piece of social legislation and is meant mainly to protect the tenants from frivolous evictions. At the same time, in order to do justice to the landlords and to avoid placing such restrictions on their right to evict the tenant as to destroy their legal right to property, certain statutory provisions have been made by the legislature which have given relief to the landlord. In so far as the social legislation, like the Act is concerned, the law must strike a balance between rival interests and it should try to be just to all. The law ought not to be unjust to one and give a disproportionate benefit or protection to another section of the society. Tenants and landlords are to be given equal treatment. The courts have to adopt a reasonable and balanced approach while interpreting rent control legislations and assume that equal treatment has been meted out to both, the tenants and the landlords."

It is viewed through this lens of attempting to balance the conflicting provisions, that the Court found that the basic objective of Section 25 of the Act was to empower the Government to exempt any building or class of buildings from the application of the Act for protecting the interest of the State by encouraging people to invest in buildings, thereby increasing the building stock in the rental market.

The decision in Lachoo Mal v. Radhye Shyam (1971) was also relied upon by the Court in arriving at its aforementioned finding. 

The Court thus rejected the argument that the RCC had no jurisdiction to entertain the RCP. It was further found that such a point was raised only during the course of arguments in the instant revision petition, and that it had not been brought to the notice of either the RCC or the RCAA. 

"After having subjected himself to the jurisdiction of the RCC and after having suffered an adverse order, at this point of time the respondenttenant cannot raise a contention that the R.C.P. is not maintainable in view of Section 25 of the Act", it was observed. 

The Court further noted that both the RCC and the RCAA had gone into the matter, apprised and reapprised respectively the evidence adduced, and had considered all aspects in detail before arriving at its decision, thus negating any allegation of irregularity, illegality or impropriety warranting an interference by the Court. 

The revision petition was therefore dismissed and the respondent-tenant was granted six months' time to vacate the building. It was further added that the respondent-tenant ought to pay the arrears of rent if any, on or before the said date, and continue to pay the monthly rent on or before the 10th day of every succeeding month till he vacates the building.

Case Title: Chorayil Kunhiraman v. Sharaful Islam Madrassa Committee

Citation: 2022 LiveLaw (Ker) 526

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