Supreme Court of India
P. KESAVAN(DEAD) THROUGH LRS.versusAMMUKUTTY AMMA & ORS.
- Citation
- 1987 INSC 350
- Decided
- 26 November 1987
- Disposal
- Dismissed
- Bench
- SABYASACHI MUKHERJI
Holding
The landlord is entitled to evict the tenant as the bona‑fide need under Section 11(3) is satisfied and Section 17 does not apply because no structural conversion of the building is involved.
Summary
The landlord sought eviction of a tenant who was using a building for non‑residential purposes, claiming a bona‑fide need to occupy the premises himself as a residence. The Rent Controller, the Appellate Authority, the District Judge and the Kerala High Court all upheld the landlord’s claim under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The tenants appealed to the Supreme Court, contending that the landlord’s residential need could not justify eviction because Section 17 of the Act prohibited conversion of a building’s use and that the second proviso of Section 11(3) barred eviction where the tenant depended on the premises for his livelihood. The Court held that the landlord’s need was bona‑fide, satisfying Section 11(3), and that Section 17 was inapplicable because it deals with structural conversion by the tenant, not a mere change of user. Consequently, the eviction was permitted. The appeal was dismissed, with the decree for eviction stayed until 30‑Sept‑1988 subject to conditions.
Issues considered
- Whether the landlord’s bona‑fide residential need satisfies Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 for eviction of a tenant using the premises for non‑residential purposes.
- Whether the second proviso to Section 11(3) bars eviction when the tenant’s livelihood depends on the premises.
- Whether Section 17(1) of the Act, which prohibits conversion of residential to non‑residential use (or vice‑versa), applies to the present case where the tenant’s use is non‑residential and the landlord seeks residential occupation.
Legislation cited
- Kerala Buildings (Lease and Rent Control) Act, 1965s. 11(3), s. 17(1), s. 20
Subjects
evictionbona fide needlandlordtenantconversionresidential usenon‑residential useKerala Buildings (Lease and Rent Control) ActSection 11(3)Section 17rent control
Judgment
P. KESAVAN(DEAD) THROUGH LRS. A
);
v.
AMMUKUTTY AMMA & ORS.
NOVEMBER 26, 1987
-'1 [SABYASACHI MUKHARJI AND S. RANGANATHAN, JJ.) B
Kerala Buildings (Lease and Rent Control) Act, 1965: ss. 11(3),
17 & 20-Eviction-Bona fide need of landlord-Tenant using build-
f ing for non·residen{ial purpose-Landlord whether entitled to seek
eviction on grounds of residential use.
Sub-section (3) of s. 11 of the Kerala Buildings (Lease and Rent
Control) Act, 1965 permits eviction of a tenant where the landlord
bona fide needs the building for his own occupation. The second
c
proviso thereto excepts the tenant depending for his livelihood mainly
. on business carried on in such building. Sub-s. (1) of s. 17 interdicts
conversion of a residential building into a non-residential one or vice· D
versa and division of such building into separate portions except with
the permission of the Accommodation Controller. The proviso thereto
makes the consent of the landlord necessary where such conversion
y~ involves structural alteration of the building.
The premises in question was being used by the tenant for non- E
residential purpose. The respondent-landlord required it bona fide for
his self-occupation. The Rent Controller granted permission under
s. 11(3) for eviction of the tenant. The Appellate Authority and the
) District Judge in revision did not interfere with the concurrent
findings of facts on the bona fide need of the landlord.
-\ F
In second revision the contention that since the requirements of
the second proviso to s. 11(3) had not been fulfilled, the landlord was
not entitled to eviction was rejected by the High Court on the ground
that this was a question of fact and all the courts had found in favour
of the landlord.
G
~. In the appeal by special leave, °it was contended for the appellant
that since the building in question was used for non-residential pur-
pose by the tenant and the landlord required the same for a residential
purpose, such a need could not justify tenant's eviction by virtue of s.
17 of the Act which prohibited such conversion.
H
81
82 SUPREME COURT REPORTS [ 1988] 2 S.C.R.
A Dismissing the appeal,
(
HELD: 1. The landlord is entitled to eviction. It is found as a
fact that he bona fide needed the premises in question for his own use
and occupation. Therefore, s. 11(3) has been complied with. [84D·EJ
The prescriptions of s. 17 are not attracted to the instant case.
The conversion as contemplated by s. 17(1) for which permission was
required is conversion by the tenant and cannot be a conversion by the
landlord. The use of expression "such conversion" in the proviso to
s. 17( l) indicates that in case of conversion by the tenant permission is
required on the consent of the landlord. Further-more, the term
"convert" therein does not denote a mere change in the mode of
c occupation but covers only alterations of the physical features. Putting
to a different purpose the user of the building is not a conversion of
the building as such. The building was used for non-residential
purposes and the purpose for which it was sought was for residential
purpose. It has been found that the building has rooms which can be
D used as bed rooms, sitting rooms etc. and it has a kitchen and dining
hall. No alteration or conversion is required if the building is to be
used for residential purpose. There was, therefore, no conversion of
the building as such involved in the instant case, but a change of user
of the building. [86A; 85C·F, 86B l
-,
E Muhammed v. Abdul Rahiman, [1983] K.L.T. 874 and Das
Naik v. Narayanan, [1980] K.L.T. 951, approved.
[Since the appellants-tenants have been in possession of the "l ·
premises for sometime, it was directed that the decree for eviction (
shall not be executed till 30.9.1988 provided they pay arrears of rent,
F if any, within one month, and undertake to hand over vacant and
peaceful possession, to pay future compensation month by month
before lOth of every month and not to induct any other person. l [860-G]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2 of
1982.
G
From the Judgment and Order dated 16.10.1981 of the Kerala
High Court in C. R.P. No. 1927 of 1987. f
N. Sudhakaran for the Appellants.
H E.M.S. Anam for the Respondents.
P. KESAVAN v. AMMUKU1TY (MUKHARJI, J.] 83
The J udgment of the Court was delivered by A
SABYASACHI MUKHARJI, J. This appeal by special leave is
directed against the order of the High Court of Kerala at Ernakulam
dated the 16th October, 1981 in Civil Revision Petition No. 1927 of
1981. The appellants are the heirs of the original tenant. The original
appellant died and his heirs have been substituted in his place. The B
I
1 landlord being the respondent herein wanted the premises in question
for his own use and occupation. He accordingly applied to the Rent
Corttroller for permission. The Rent Controller after hearing the
parties granted such permission. The Appellate Authority upholding
the order of the Rent Controller, maintained the order of eviction.
There was a revision before the learned District Judge. The learned C
District Judge dismissed the revision petition holding that it was
difficult to interfere with the concurrent findings of facts of the
Courts below on the bona fide need of the landlord for his own use
and occupation.
The tenant came up before the High Court in second revision D
t' and the High Court after hearing the parties and considering the
contentions urged before it, dismissed the revision upholding the
order of Rent Controller, the ~ppellate Authority and the District
Court under Section 20 of the Kerala Building (Lease and Rent
r Control) Act, 1965 that the landlord required the premises for his
bonafide need and for self occupation. E
The only contention that was urged in the matter was that the
landlord was not entitled to eviction under sub-section (3) of Section
11. Sub-section (3) of Section 11 provides as under:-
"A landlord may apply to. the Rent Control Court for an F
order directing the tenant to put in possession of the
building if he bona fide needs the building for his own
occupation or for the occupation be any member of his
family dependent on him."
The contention urged before the Courts below including the G
High Court was that the second proviso to Sub,section (3) of Section
11 had not been fulfilled and the second proviso provides-as. under:-
·"That the Rent Control Court shall not give any direction
to a tenant to put the landlord in possession, if such
tenant is depending for his livelihood mainly on ·the H
84 SUPREME COURT REPORTS [1988] 2 S.C.R.
income derived from any trade or business carried on in
A such building and there is no other suitable building
available in the locality for such person to carry on such
,.
trade or business."
All the Courts have found against the tenant's contention on
8 this aspect of the matter. As this is a question of fact, the High Court
in our opinion has rightly declined to interfere with that findings of \.
fact.
Before we proceed further it was pointed out by the counsel for
the respondents that in view of the provisions of the said Act and in · ·
'1
view of the decision of this Court in the case of Aundal Ammal v.
C Sadasivan Pillai, [1987] 1 S.C.C. 183 the second revision before the
High Court in the facts and circumstances of this case did not lie. For
the purpose of this appeal, we are not proceeding with on that basis
but have examined the facts found by the courts below to find out if
there is any infirmity in their findings as mentioned hereinbefore.
D
It is found as a fact that the landlord bona fide needed the
premises in question for his own use and occupation. Therefore,
Section 11(3) has been complied with.
The only contention raised was whether on the second proviso
E to Section 11(3) of the Act the landlord was not entitled to eviction.
That was rejected by the High Court on the ground that this was a
question of fact and all the Courts have found in favour of the
landlord. We agree with this. Even if a second revision lay the scope
of interference by the High Court in the second revision is very
limited. This has been so held by this Court in Mis Sri Raja Lakshmi
F Dyeing Works and Others, v. Rangaswamy Chettiar, A.l.R. 1980 S.C.
1253. We adhere to this principle.
It was urged before us that the building in question was used
for non-residential purpose by the tenant and the bona fide need of
the landlord was said to be for the use and occupation of the landlord
G and his family which is a residential purpose. It was submitted that
•
such a need cannot justify in this case the eviction of the tenant. It
was also submitted that Section 17 of the Act prohibited such con-
version. Sub-section ( 1) of Section 17 which is relevant for the
present purpose provides as follows:-
H "Section 17. Conversion of buildings and failure by land-
P. KESAVAN v. AMMUKUTIY [MUKHARJI, J.] 85
lord to make necessary repairs: A
>,
(1) No residential buildings shall be converted into a non-
residential building or vice-versa and no such building
shall be divided into separate portions for letting on rent
or for other purposes except with the permission in writ-
ing of the Accommodation Controller: B
Provided that where such conversion involves struc-
tural alteration of the building, the consent of the landlord
shall also be necessary."
It appears clear that this conversion as contemplated for which C
permission was required is conversion by the tenant and cannot be a
conversion by the landlord. Quite apart from the fact that in this case
there was no conversion of the building sought. The building was
used for non-residential purpose and the purpose for which the
building was sought was for residential purpose. It appears to us that
putting to a different purpose the user of the building is not a D
•• conversion of the building as such. It has been found that the building
as it is without any structural change can be put to residential
purpose. There was no conversion of th~ building as such is involved
in this case but a change of user of the building. Furthermore, in any
event the proviso to Section (1) makes it clear, in our opinion, that
such conversion as contemplated by Section 17 of the Act for which E
permission in writing by the Accommodation Controller required is
in case of change of the user of the premises by the tenant and not by
the landlord. The use of the expression "such conversion" in the
proviso indicates that in case of conversion by the tenant permission
is required on the consent of the landlord. Therefore the absence of
permission in writing of the Accommodation Controller in this case F
does in our opinion affect the position. This appears to be the view of
the Kerala High Court on this aspect of the matter. See in this con-
nection Muhammed v. Abdul Rahiman, [1983] K.L.T. 874 and Das
Naik v. Narayanan, [1980] K.L.T, 951. This appears to be the correct
view of law. Our attention was also not drawn to any decision of the
Kerala High Court which has taken any contrary view. The view held G
by the Kerala High Court in this aspect has been relied by the High
Court in the judgment under appeal. It seems to be logical view. We
would therefore follow that view. In view of the proviso explaining
the ambit of that requirement that permission sought for or men-
tioned in Section 17( 1) is in respect of the different user by the tenant
and not by the landlord. The High Court has also observed in term H
86 SUPREME COURT REPORTS [1988] 2 S.C.R.
A "convert" does not denote a mere change in the mode of occupation,
but covers only alterations of the physical features, the prescriptions
of Section 17 are not attracted to the present cdse at all. Admittedly
the building in question has rooms which can be used as bed rooms,
sitting room etc. and it has a kitchen and dining hall. No alteration or
conversion is required if the building is to be used for residential
B purposes.
In the aforesaid view of the matter there was hardly any scope
for interference by the District Judge and he declined to do so on this
basis. In our opinion he was right. Similar was the position of the
High Court on these facts and it declined to interfere with the
findings of fact.
c
In the aforesaid view there is no merit in this appeal. The
appeal fails and is dismissed accordingly. Parties will pay and bear
their own costs.
Since the tenants have been in possession of the premises for
D some time we direct that the decree for eviction shall not be executed
till 30.9.1988 provided all the heirs of deceased appellant file an usual '<
undertaking in this Court within four weeks from today stating inter
alia, as follows;
1. That the appellant will hand over vacant and peaceful
E possession of the suit premises to the respondent on or before
30.9.1988 from today.
2. That the appellants will pay to the respondent arrears of
rent, if any, within one month from today.
)
f 3. That the appellants will pay to the respondent future com-
pensation for use and occupation of the suit premises month by
month before !Oth of every month.
t
4. That the appellants will not induct any other person in the
suit premises.
G
It is further directed that in default of compliance with any one
or more of these conditions or if the undertaking is not filed as }.
required within the stipulated time, the decree shall become execu-
table forthwith.
P.S.S. Appeal dismissed.
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