SUBHADRA Vs. GOPALAKRISHNA NAIDU
LAWS(KER)-1978-2-37
HIGH COURT OF KERALA
Decided on February 25,1978

SUBHADRA Appellant
VERSUS
GOPALAKRISHNA NAIDU Respondents

JUDGEMENT

George Vadakkel, J. - (1.) THE revision Petitioner sought to evict the Respondent herein invoking Sub -sections (2) and (3) of Section 11 of the Kerala Buildings (Lease and Rent Control) Act, 1965. During the course of evidence it turned out that the Respondent, as contended by him, was in continuous occupation of the building in question from a date prior to 1st April 1940. Therefore the provision governing eviction was understood by the lower courts to be Sub -section (17) of Section 11. The case was considered on that basis also by all the three courts, the Rent Control Court, the Appellate Court, and the Revisional Court. While the Rent Control Court and the Revisional Court agreed that the bar under Sub -section (17) is attracted, the Appellate Authority took the view that the revision Petitioner is entitled to evict the Respondent despite Sub -section (17) of Section 11. Hence this revision impugning the revisional order passed by the learned District Judge.
(2.) THE learned District Judge relying on the decision of this Court in Meannan v. Venkatarama Chettiar, 1966 K.L.T. 116 said that "occupation of a rented building does not imply dire need as laid down by the High Court in the ruling reported in, 1966 K.L.T. 116". This, I suppose, has blurred the view of the revisional court in that that decision says something different, namely, that the landlord seeking eviction has a rented house where he resides and can continue to reside without imminent danger of eviction, is not a relevant answer in deciding whether he "is in dire need of a place of residence and has none of his own ". This is clear from paragraph 7 of the decision aforesaid wherein Govindan Nair, J.; as he then was said as follows: Both these authorities proceeded on the basis that the fact that the Respondent was staying with his family in a rented house would be a relevant consideration for determining the question Whether eviction can be had. So the appellate authority took the view that the landlord seeking eviction must establish that his landlord is entitled to evict him (the landlord seeking eviction) from the building which he is occupying on rent before it can be said that there is 'dire need'. The revisional authority has come to a different conclusion. I do not think that the occupation of a building on rent is a relevant consideration in determining the question of 'dire need'. The last part of Section 11(17), which I have held must stand separately, states the conditions that should be established as 'dire need' and the lack of a building of 'his own'. So the occupation of a building on rent is not material. But 'dire need' being defined something in the nature of a 'pressing necessity' or a 'compelling need' must be proved on material on the basis of which it is possible to come to such a conclusion. This passage means, as I understand it, simply that it is no answer to an eviction -petition based on the ground of 'dire need of a place for residence and has none of his own', to say that the Petitioner -landlord has a rented building where he is residing and can continue to reside there without any fear of eviction. The second requirement of which the Rent Control Court is to be satisfied before ordinary eviction in such a case is that the landlord has no place of residence of his own, and so, that he has a place of residence though not of his own but taken on rent, is no defence to such an eviction petition. It appears that the statute proceeds on the basis that to constitute 'dire need' it is essential that the landlord should have no place of residence which is his own. Therefore, what is relevant in regard to the second requirement mentioned above is an enquiry as to whether the landlord is occupying any place of residence of his own or not and as regards the availability of a place of residence of his own. Therefore, while occupation by the landlord of a building taken on rent by him is not a material or relevant defence it can be averred and shown by the landlord that he is residing in a rented house since he has no place of residence of his own other than the building occupied by the tenant. The landlord can, for example, establish that he is in imminent danger of being evicted from the rented building he is occupying wherefore he is in need or dire need of a place of residence for him, but the tenant cannot contend that since the landlord in not under any threat of eviction from a rented house he is occupying he is not in need or dire need of a place for residence. Sub -section (17) prohibits eviction of a tenant who has been occupying the building continuously from 1st April 1940 for bona fide occupation by the landlord or by any member of his family dependent on him except in two instances, and in both cases, unless the building in question is a residential building. The first is, where a landlord who has been living outside the city, town or village in which the building is situated for more than five years before he applies for eviction, 'requires' the building bona fide for his own permanent residence or for the permanent residence of any member of his family; and the second, if the landlord is 'in dire need of a place for residence and has none of his own'. The provisions controlling eviction for own occupation or occupation by a member of the landlord's family dependent upon him are leaving out Sub -section (17) of Section 11 which as per the ruling in Y.W.C. Association v. Jacob, 1969 K.L.T. 919 is not subject to Section 11(17) of the Act, Sub -sections (3) and (8) of Section 11. Under the former provision the landlord can seek eviction, subject to the other limitations mentioned therein, 'if he bona fide needs the building' and under the latter, 'if he requires additional accommodation for his personal use' - - Sub -section (8) relates to eviction of a tenant occupying part of a building by a landlord occupying the remaining portion. Note the expressions 'requires', 'needs' and 'in dire need '. It is in this setting that the scope of the second exception to the prohibition contained in Sub -section (17) has to be considered.
(3.) CONSTRUING the word 'required' in the following provision in the Rent Act, 1968: Where a person who occupied the dwelling house as his residence (in this case referred to as 'the owner -occupier') let it on a regulated tenancy and (a) not later than the relevant date the landlord gave notice in writing to the tenant that possession might be recovered under this case, and (b) the dwelling house has not, since December 8, 1965, been let by the owner -occupier on a protected tenancy with respect to which the condition mentioned in paragraph (a) above was not satisfied, and (c) the court is satisfied that the dwelling house is required as a residence for the owner -occupier or any member of his family who resided with the owner -occupier when he last occupied the dwelling house as a residence. in Rennenly v. Dunne, 1177 I Q B 37 C.A. at 850 Stephenson L.J. said: For these reasons, the judge was in my opinion wrong in saying that 'requires' means more than 'wants' and more than bona fide 'intention', and in saying that there was 'something objective as well' There is nothing more objective about this provision than that it must be a genuine requirement and there must be a present intention; and, if the landlord proves that, he is entitled to possession under case 10. In the same case Browne L.J. held: I am driven to the conclusion that 'required' in case 10 puts on the landlord the burden of proving no more than that he genuinely desires to have the house as a residence for himself or for the specified members of his family, and genuinely has the immediate intention of using it for that purpose if he does get possession. The same view was taken by Megaw L.J. also who said: I also agree. It is to my mind clear that the legislature has deliberately omitted the word 'reasonably' in case 10, and has deliberately inserted it in case 8. It may well be that there are good reasons of policy within the general policy of the Rent Act 1968 why that distinction should have been drawn. Whether that be so or not, the result of it I have no doubt, is that in order to comply with paragraph (c) of case 10 what has to be proved by the person who had previously occupied the dwelling house as his residence and now desires to occupy it again is that he desires to occupy it and that he intends so to do. I need searcely say that the desire must be a genuine desire: the intention must be a genuine intention: but no more than that.;


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.