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Muhammed v. Abdul Rahiman
Concise Analytical Summary of the Opinion
Factual and Procedural Background
This revision arises at the instance of the respondents-tenants challenging the concurrent decision of the courts below which ordered their eviction under S. 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (the Act). Two shop-rooms in a building owned by the petitioner-landlord were let to the respondents for carrying on a grocery business. The landlord himself is in possession of two rooms and a side room in the same building. The courts below found that the landlord bona fide required the two shop-rooms for his own occupation (residence) and to carry on a trade for his living and accordingly ordered eviction. The tenants sought revision of that decision.
The factual findings accepted by the courts below (and not disturbed in revision) included that the landlord is currently residing in a house belonging to his step-mother without a right of residence there, that other persons reside with the step-mother, and that there is insufficient space there for the landlord and his family. The courts below also found that the tenants had shifted their business to a new building called "Amina Stores" (within about 50 feet of the petition schedule shop-rooms) and that the tenants failed to prove dependence on income from the petition premises or the non-availability of other suitable premises in the locality.
Legal Issues Presented
- Whether a landlord who is in possession of part of the building can apply for eviction under sub-section (3) of S. 11 (bona fide need for occupation), or is limited to sub-section (8) of S. 11 (where the landlord is occupying only a part of the building and requires additional accommodation).
- Whether the landlord's claimed bona fide need for occupation (residence and to carry on trade) is supported by evidence such that the eviction order should be sustained.
- Whether the provisos to sub-section (3) of S. 11 (prohibiting eviction where landlord has another building in the same locality, or where the tenant depends on the income from the business at the premises and no other suitable building is available) protect the tenants in this case.
- Whether S. 17(1) (restriction on conversion between residential and non‑residential use except with the Accommodation Controller's permission) bars the landlord from seeking eviction of non-residential shop-rooms for bona fide residential occupation.
Arguments of the Parties
Revision-Petitioners (Tenants) — Principal Contentions
- Because part of the building is in the possession of the landlord, the landlord cannot seek eviction under sub-section (3) of S. 11; the only applicable ground is sub-section (8) of S. 11.
- Even if bona fide need under sub-section (3) is established, the tenants claim protection under both provisos to sub-section (3): (1) that the landlord has another building in his possession in the same locality, and (2) that the tenant depends on income from the business carried on in the building and there is no other suitable building available.
- That the shop-rooms are non-residential and S. 17(1) prohibits conversion between residential and non-residential uses without the Accommodation Controller's written permission, implying a barrier to eviction for residential use.
Landlord's Position / Evidence (as accepted by the courts below)
- The landlord adduced evidence that he is residing at his step-mother's house without any legal right of residence there, that others reside in that house, and that there is insufficient accommodation for the landlord and his family.
- The landlord asserted bona fide need for the two shop-rooms for his own residence and to carry on a trade to earn a living.
- The landlord was in possession of two rooms and a side room in the building but had not occupied them for residence and trade because they were insufficient for his needs.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ratilal Bros. v. Government of Mysore, AIR 1951 Mys. 66 | Explains the uncertain meaning of the word "occupy" and distinguishes between legal possession and physical presence/residence. | The Court relied on the decision to support the distinction between "possession" and "occupation" when interpreting sub-section (8) of S. 11 and to show that mere possession does not necessarily amount to occupation entitling a landlord to relief under s.11(8). |
| Queen v. The Justices of the West Riding of Yorkshire, (1842) 114 E.R. 198 | Illustrative statement (quoted in Ratilal Bros.) that "occupy" ordinarily connotes living in the house and that "actual occupation" does not necessarily mean residence in all cases. | Quoted as part of the authority for interpreting "occupy/occupation" — supporting the Court's approach to distinguish occupation from mere possession. |
| Ammini Pandarathi v. Leelamma, 1977 KLT 441 | Holds that the prohibition in S.17(1) (on conversion between residential and non-residential use) is directed against tenants rather than landlords. | The Court cited this decision to conclude that S.17(1) does not operate as a bar to a landlord seeking eviction of a non-residential building for bona fide residential occupation. |
| Das Naik v. Narayanan, 1980 KLT 951 | Similar construction to Ammini Pandarathi: S.17(1) prohibition is aimed at tenants. | Relied on together with Ammini Pandarathi to reinforce that S.17(1) does not prevent a landlord from seeking eviction for bona fide residential use of a non-residential premises. |
Court's Reasoning and Analysis
The Court proceeded by addressing the factual findings and the statutory interpretation questions raised:
- Factual sufficiency for bona fide need: The Court observed that nothing in the revision warranted interference with the concurrent findings of fact by the courts below. The landlord's evidence — residence in a step-mother's house without a right to occupy, additional persons living there, and insufficient space for the landlord and his family — was accepted. On that evidence the court concluded the finding of bona fide need (for both residence and to conduct a trade to earn a living) was justified.
-
Statutory interpretation of S.11(3) and S.11(8): The Court analyzed the language and purpose of the Act (passed against a backdrop of scarcity of accommodation) and noted that:
- The expression "building" in the Act includes a part of a building.
- Sub-section (8) provides a specific ground where the landlord is "occupying only a part of a building" and requires additional accommodation; sub-section (3) provides for bona fide need for occupation by the landlord or a dependent family member.
- Importantly, sub-sections (3) and (8) are not mutually exclusive; if both grounds are available the landlord may apply under either or both. The mere existence of a provision (s.11(8)) applicable to a particular factual situation does not exclude the operation of s.11(3) where its conditions are met.
- It would be unsound statutory construction to impose more restrictions than the statute itself provides.
- Distinction between possession and occupation: Relying on Ratilal Bros. (and the passage from Queen v. The Justices) the Court explained that "occupation" and "possession" are not synonymous. A person may possess rooms without "occupying" them for residence. Sub-section (8) is only available to a landlord who is actually occupying part of the building. In the present case the landlord, although in possession of two rooms and a side room, had not occupied them due to insufficiency for the intended residential and trade use; thus the landlord could legitimately invoke s.11(3).
-
Application of provisos to s.11(3):
- First proviso (landlord having another building in same locality): The tenants had not raised this point before the courts below in the manner now pressed; moreover the landlord's in-possession rooms were insufficient and kept unoccupied, which the Court regarded as "special reasons" justifying eviction despite possession of other rooms.
- Second proviso (tenant's livelihood depends on the income from business at the premises and no other suitable building available): The Court placed the burden on the tenants to prove dependence on income from the petition premises and lack of alternate accommodation. The evidence showed that the tenants had shifted their business to "Amina Stores" nearby (within about 50 feet) and had secured alternate accommodation; there was no proof of income dependency from the petition rooms nor proof of unavailability of other suitable premises. Consequently, the second proviso did not protect the tenants.
- S.17(1) conversion issue: The Court relied on its earlier decisions (Ammini Pandarathi and Das Naik) holding that S.17(1)'s prohibition on conversion between residential and non-residential use is directed against tenants (i.e., tenants cannot convert without permission). The proviso to s.17(1) further requires the landlord's consent where structural alteration is involved. Therefore S.17(1) does not bar a landlord from seeking eviction of a non-residential premises for bona fide residential occupation; permission of the Accommodation Controller would only be relevant at the time of actual conversion.
Holding and Implications
Holding:
DISMISSED. The revision petition (CRP) fails and is dismissed. No costs were awarded.
Immediate consequences and implications (as explicitly stated or applied in the opinion):
- The eviction order made by the courts below (under S.11(3) of the Act) is sustained; the tenants remain subject to that eviction order.
- The Court held that sub-section (3) and sub-section (8) of S.11 are not mutually exclusive; a landlord who is in possession of part of a building may still seek eviction under s.11(3) if the statutory conditions for bona fide need are satisfied.
- The Court clarified that possession by a landlord of part of a building does not automatically constitute "occupation" within the meaning of s.11(8); occupation entails more than mere possession and must be assessed in context.
- The provisos to s.11(3) did not protect the tenants in this factual matrix: (a) the landlord's possession of other rooms did not defeat his bona fide need given the insufficiency and non-occupation of those rooms (constituting "special reasons"), and (b) the tenants failed to discharge the burden of proving dependence on income from the petition premises and non-availability of alternate premises.
- S.17(1) (restriction on conversion between residential and non-residential use) was held not to bar the landlord from seeking eviction for bona fide residential occupation; the prohibition was construed as directed against tenants and actual permission from the Accommodation Controller is relevant only when conversion is undertaken.
Note: This summary is strictly confined to the statements, findings and reasoning contained in the provided opinion and does not add or infer facts beyond the text of that opinion.
1. This revision at the instance of the Respondents-tenants is against the concurrent decision of the courts below, for their eviction under S. 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 hereinafter referred to as the Act.
2. Two shop rooms in a building belonging to the petitioner-land-lord were let to the respondents-tenants for conducting a grocery shop. The landlord is in possession of two rooms and a side room in the same building. Eviction was ordered by the courts below on the finding that the landlord bona fide requires the two rooms in question for the purpose of his residence as well as to carry on a trade for his living.
3. Even though the finding of bona fide need for own occupation of the landlord is challenged in this revision, nothing is brought out before me to interfere with the concurrent finding of fact. The courts below have accepted the evidence adduced on behalf of the landlord that he is presently residing in a house belonging to his step mother, he has no right of residence in the said house, there are other persons residing with the step mother and there is no sufficient space for the occupation of the landlord and his family.
4. On the evidence in the case, the finding of bona fide need of the landlord for the occupation of himself and his family for the purpose of residence and to conduct a trade to earn a living is perfectly justified and cannot be interfered with in this revision.
5. Learned Counsel for the revision-petitioners contended that since part of the building is in the possession of the landlord himself, it is not open to him to apply for eviction under sub-section (3) of S. 11 and the only ground on which he can seek eviction is under sub-section (8) of S. 11 of the Act. S. 11 of the Act enacts that a tenant shall not be evicted except in accordance with the provisions of the Act, and enumerates the grounds on which the landlord may apply to the Rent Control Court for the eviction of the tenant. Under the general law of landlord and tenant, a landlord is entitled to evict the tenant on the determination of the lease. S. III of the Transfer of Property Act provides for the various modes under which a lease of immovable property determines. Under clause (q) of S. 108 of the T.P Act the lessee is bound to put the lessor in possession of the property on the determination of the lease. The preamble to the Kerala Buildings (Lease and Rent Control) Act, 1965 states the purpose of the Act as to regulate the leasing of buildings and to control the rent of such buildings in the State. It is in the context of acute scarcity of residential and non-residential accommodation that the Act was passed restricting the right of the landlord to evict the tenants. Under sub-section (3) of S. 11 of the Act, the landlord in bona fide need of the building for the occupation of himself or of any member of his family dependent on him may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building. The expression ‘building’ as defined in the Act includes part of a building. Sub-sec. (8) of S. 11 enacts another ground, as per which a landlord in occupation of a part of the building may apply for the eviction of the tenant in occupation of the whole or any portion of the remaining part if he requires additional accommodation for his personal use. Sub-sections (3) and (8) of S. 11 are not mutually exclusive. If both the grounds are available to the landlord it is open to him to apply for eviction on either of the grounds or on both. The mere fact that there is a specific provision applicable to a situation where the landlord is in occupation of a part of a building and the remaining portion or part thereof is in the possession of a tenant, does not preclude the landlord from seeking eviction under sub-section (3) of S. 11 of the Act. It is not a sound principle of statutory construction to place more restrictions on the rights of parties than what is provided for in the Statute itself. There is therefore no substance in the plea that for the reason of the landlord's possession of a part of the building, sub-section (8) excludes the operation of sub-section (3) of S. 11 of the Act for a landlord to apply for eviction of his tenant.
6. In the present case even though the landlord is in possession of two rooms and a side room in the building he has not yet occupied the same for the reason of insufficiency of accommodation for the purpose of residence and trade. Occupation is different from possession is clear from sub-section (8) of S. 11 itself. The sub-section enables “a landlord who is occupying only a part of a building”, to apply to the Rent Control Court for an order directing a tenant occupying the whole or any portion of the remaining part of the building to put the landlord in ‘possession’ thereof if he requires additional accommodation for his personal use. Personal use referred to therein is for the purpose of occupation. The word ‘occupying’ in sub-section (8) should be understood in the context in which the expression is used. In the decision of the Mysore High Court in Ratilal Bros. v. Government of Mysore (AIR. 1951 Mys. 66), it is stated at page 67:
“The word ‘occupy’ is a word of uncertain meaning. Sometimes it indicates legal possession in the technical sense. At other times ‘occupation’ denotes nothing more than physicial presence in a place for a substantial period of time. In Queen v. The Justices of the West Riding of Yorkshire, (1842) 114 E.R 198: Patteson, J. expressed thus:
“Now I quite concede that the word ‘occupy’ applied to a house, conveys to any man the meaning of living in the house; ninety-nine persons in a hundred, at least would so understand it……Even “actual occupation” would not necessarily mean ‘residence’ because a man might dwell in one parish & rent a house & land in the adjoining one, occupying it by his servants. Some other words therefore, are necessary to show residence”.
7. Occupation and possession are not synonimous terms. One may possess land or building without occupying the same. Unless the landlord is occupying part of the building, he will not be entitled to invoke sub-section (8) of S. 11 to evict the tenant occupying the remaining part of the building.
8. Learned counsel for the petitioners contends that even if bona fide need under sub-section (3) of S. 11 is made out by the landlord, the tenants are entitled to the protection of both the provisos thereto. As per proviso (1) the landlord is not entitled to an order for eviction if he has another building of his own in his possession in the same city, town or village except where the rent control court is satisfied that special reasons in any particular case it will be just and proper to order eviction. No such point as is now pressed before me was urged before the courts below. The two rooms and the side room of the building in the possession of the landlord are not sufficient for the purpose of his residence and a small trade to earn a living and that is the reason why those rooms are kept unoccupied. This will constitute special reason for ordering eviction of the two rooms in the occupation of the tenants. As per the second proviso, the landlord will not be entitled to an order for eviction if the tenant is depending for his livelihood on the income derived from any trade or business carried on in the building and there is no other suitable building available in the locality for the tenant to carry on such trade or business. In the present case the courts below have found that the tenants have shifted their business to a new building and they are carrying on trade in the name and style of ‘Amina Stores’ there. The burden is on the tenants to prove that they, are depending for their livelihood on the income derived from the business carried on in the building from which they are sought to be evicted. The evidence adduced by the tenants would show that they are using the two rooms in question for storing articles of trade such as cattle feed, rice, oil etc. The Amina Stores in the new building and the petition schedule shop rooms are situated within 50 feet of each other. There is he evidence as to the income derived from the petition schedule building, nor is there anything to show that they are depending on the income from the trade or business carried on in the said building for the purpose of their livelihood. The tenants have also failed to prove that there is no other building available in the locality for carrying on their trade. It is on the other hand admitted that they have secured alternate accommodation and have shifted the business to a new building, where they are carrying trade in stationery articles. There is therefore no substance in the contentions based on provisos 1 and 2 of sub-section (3) of S. 11 of the Act.
9. It is next contended that the landlord seeks eviction of the building for the purpose of residence, the shop-rooms in question are non-residential buildings and under sub-section (1) of S. 17, no residential building shall be converted into a non-residential building or vice versa except with the permission in writing of the Accommodation Controller. This Court in the decisions in Ammini Pandarathi v. Leelamma (1977 KLT. 441) and Das Naik v. Narayanan (1980 KLT. 951), has held that the prohibition in the sub-section is directed against the tenants only. This construction of the sub-section is perfectly in consonance with its proviso which requires the consent also of the landlord if the conversion involves structural alteration of the building. Merely for the reason of residence and trade in a shop-building, itself is not converted into a residential one. Even if the permission of the Accommodation Controller is required, it can only be at the time when a non-residential building is to be converted into a residential building or vice versa. S. 17(1) is not therefore a bar against the landlord seeking eviction of a non-residential building for his bona fide need of occupation for the purpose of residence.
10. No other question arises in this revision. The CRP. fails and is dismissed. No costs.
11. Dismissed.
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