(S 11 (4) (iv))
if the building is in such a condition that it needs reconstruction and if the landlord requires bona fide to reconstruct the same and if he satisfies the Court that he has the plan and license, if any required, and the ability to rebuild and if the proposal is not made as a pretext for eviction:
Provided that the landlord who evicts a tenant and does not reconstruct completely the building within a time which may be fixed or extended by the Rent Control Court, shall on a petition before that Court be liable to a fine of rupees five hundred, if it is proved that he has willfully neglected to reconstruct completely the building within such time:
Provided further that the Court shall have power at any time to issue directions regarding the reconstruction of the building and on failure of compliance by the landlord, to give effect to the order in any manner the Court deems fit and in appropriate cases to put the tenant back in possession or award to the evicted tenant damages equal to the excess rent he has to pay for another building that he is occupying in consequence of such eviction:
Provided further that the tenant who was evicted shall have the first option to have the reconstructed building allotted to him with liability to pay its fair rent: or
1. Object
The legislature wants developments in the building sector and further, the dilapidated conditions of buildings would be a danger to the occupants of the building as well as to the public. The legislature takes care of the rights of the tenants of a building who were sought to be evicted for reconstruction. So the pre-requisites and condition subsequent were properly detailed in first and second proviso respectively, to the Section 11(4) (iv).
Building needs reconstruction is a ground for temporary eviction of the tenant, to allow the landlord to reconstruct the building. The tenancy is not terminated by an order under this section. The tenant will be given priority or first option to have the reconstructed building allotted to him. To safeguard the interest of the tenant there are three provisos for this sub clause. First proviso imposes a penalty of Rs. 500/- to the landlord who willfully neglected to reconstruct the building within the time fixed or extended by the Rent Control Court. The second proviso empowers the Rent Control Court with powers to issue directions regarding reconstruction and, to award the evicted tenant damages equal to the excess rent he has to pay for another building that he is occupying in consequence of such eviction and to put the tenant back in possession in appropriate cases. In this Act there is no embargo against a landlord demolishing residential building and constructing a non residential one in its place.
Where the landlord wanted to use the building as passage for a proposed multi-story building, the need comes under bonafide need and not under reconstruction and hence the tenant is not entitled to claim right of re-entry. Building to be demolished to provide exit for the proposed building, the respondents have no need to occupy the entire reconstructed building. order of eviction only under Section 11(4)(iv) and not under Section 11(3).
Case of the tenant that the landlord could have utilised other vacant land owned by him to make the proposed construction. It is fairly well settled that it is not for the tenant to dictate as to how the landlord should satisfy his need. The landlord is the best Judge of his need and it is for him to decide how best to satisfy his need. It is not open to the tenant to contend that the landlord should satisfy his need by utilising the vacant land available behind the tenanted premises. Tenant cannot dictate to the landlord as to the site or the type of the new building which the landlord has in mind.
2. Condition for eviction under subsection (4)iv of Section 11
Before the landlord can obtain an order for eviction on the ground of reconstruction he must satisfy the Rent Control Court about the genuineness of his claim and this can only be established by looking at all the surrounding circumstances, such as the condition of the building, its situation, the possibility of its being put to more profitable use after construction, the means of the landlord and so on.
To constitute this ground for eviction the landlord has to prove six conditions. They are :
1. Building is in such a condition that it needs reconstruction.
2. The landlord requires bonafide to reconstruct the building.
3. The landlord must prepare a plan and obtain a license from the local authority.
4. The landlord has the ability to rebuild.
5. The proposal of reconstruction is not made as a pretext for eviction.
6. Material advantage to which the building can be put to after reconstruction.
It is not merely the physical condition of the building that is the criterion to determine the question of need for reconstruction. Many other considerations must necessarily enter into the determination of the question whether the building is in such a condition as needing reconstruction. The age of the building, its adoptability for current use, the economic viability of keeping the building in the same condition are all matters which may have to be taken into account. The locality in which the building is situate might have become much more important since its construction years earlier and the construction of a new building utilizing the ground space to the maximum benefit of the owner may bring in much more advantageous return to him. That may be ground for seeking eviction for the purpose of reconstruction. But the court has the duty to see that such a plea is honest and not made as a pretext for eviction.
Mere dilapidated condition of the building does not justify need for reconstruction. The importance of the locality in which the building is situated may be a ground for reconstruction. The physical condition of the building alone is not the criterion. The “Condition of the building” is a larger concept which includes considerations of social surroundings and allied factors.
3. Building needs Reconstruction
The factors like situation of the building, the possibility of its being put to more profitable use after reconstruction are also relevant considerations. The High Court has found that the building was 80 years old when the proceedings for eviction were commenced. Almost 20 years have been lost in these proceedings and now the building is about a 100 years old. The appellants are paying a monthly rent of a little over Rs 200/- per month. Madurai is a fast developing and progressing city. There is nothing wrong if the landlord proposes to demolish such an old building and instead construct a modern and spacious marriage hall so as to make better use of the property and augment his earnings.
In an application under Section 11 (4) (iv) what is fundamental is the physical condition of the building. To allow a building to be pulled down where it could, with repair or renovation, continue to accommodate the tenant for a decade or more, simply because the landlord has the capacity and the desire to build, will be to forget the true scope of the enactment and even the realities of the situation.
To inspect the building and note the condition an engineer was appointed as a commissioner, who reported that the building was about 80 years old and there were cracks in the floor and rear walls. Some of the portions were damaged by white ants. This shows that the building is very old and was in a dilapidated condition.
4. Intention of the Landlord
If there is intention, and if there is no suspicion about the requirement, the landlord will be entitled to an order of eviction. The motive is not the criteria or a relevant factor to be taken into consideration.
Factors such as location of the building, age and physical condition of the building, the nature of development of the area where the building is situated, financial ability and necessary plan and license, the possibility of its being put to more profitable use after reconstruction are to be taken into consideration.
It is for the landlord of the building to decide whether it needs reconstruction or whether he should have it for his purpose. It is his property; and he is the best judge on that matter. If a claim is made by the landlord for possession of the building on such a ground, Rent Controller, is not entitled to say that the landlord need not have it for reasons of his own. All that he is entitled to do is to enquire whether the need is bona fide, or whether it is only a pretext to evict a tenant. The right to reconstruct a building or to have it for the landlord’s own purposes is a very valid right attached to the property.
5. Better Returns
IF the landlord feels that the existing structure is not getting proper returns, taking into consideration the fact that the development in the locality has really affected his chance of getting a good income and if by better investment, he can get better return, that decision of the landlord cannot be said as without bonafides.
6. Dilapidated condition
The limited concept of the dilapidated condition of the building as justifying the desire for reconstruction is not justified by the provision in section 11 (4) (iv) of the Act. Whether the landlords requirement is reasonable and bonafide has to be judged by the surrounding circumstances. The landlord need not establish that the condition of the building is such that it requires immediate demolition. The condition of the building need not be dangerous or even dilapidated nor need to be very old for granting an order under S.11 (4) iv. The Rent Control Court has to take into account the bonafide intention of the landlord, the age and condition of the building, and the financial position of the landlord.
Where only minor repairs are required to the building eviction under reconstruction need not be allowed. If the substantial part of a big building has become unsafe for human habitation the tenant of a portion of the building can be evicted even if that particular portion is in good condition. An eviction order under Section 11 (4) (iv) has to be upheld if it is passed taking into consideration the physical condition of the building, the developments that has been taking place in the locality and the material advantage to which the building can be put to after reconstruction.
Need for reconstruction is not confined to a situation where the building is in a dilapidated condition.
If the court finds that the building concerned is in a good physical condition and it cannot be said to be out of time with other buildings in the locality, the court is right in dismissing an application for reconstruction.
There is no hard and fast formula to decide whether a building is in a dilapidated state. This depends on the total facts and circumstances of the case, including the locality and the parties. What may be dilapidated for a high income group in a posh locality may be the usual condition in poor area.
The building has not been collapsed during the long period of litigation on the ground that the building had become unsafe and unfit for human habitation is not a ground to deny eviction because the landlord does not have to wait till premises actually fall down.
The building was ‘B’ class and was 60 years old and ‘B’ class buildings could not survive beyond 50 to 60 years. A tenant could not be permitted to defeat the right of the landlord by effecting the repairs of the dilapidated portion.
7. Plan and license
The Act 2 of 1965 take a precaution that if plan and license is required for construction of the building, the landlord should satisfy the court that he has availed necessary plan and license.
Eviction sought for reconstruction of a residential building as a non-residential building. The plan and license need not be produced along with the petition. Revisional authority cannot direct to submit a fresh plan. The provision of the Section requires only a plan and license. If the license is not approved, the building cannot be constructed. Before execution is taken out, the petitioner must produce the approval from Greater Cochin Development Authority. The absence or non-production of the order of sanction from Greater Cochin Development Authority will not be a bar to order eviction under S.11 (4) (iv) of the Act.
Court cannot reject a petition on the ground that the period of licence expired during the pendency of the proceedings. In such a case the court may incorporate a direction in the order of eviction that actual delivery of possession will be given only when the landlord satisfiers the execution coast that the licence has been renewed by the Local authorities. The petition cannot be rejected on the ground that the period of license granted by the Municipality expired during the pendency of the proceedings. To safeguard and protect the interest of the tenant, the court may incorporate a direction in the order of eviction that actual delivery will be given only when the landlord satisfies the Execution Court that the license has been renewed or a new license has been granted by the local authority concerned. When the Rent Control Court is satisfied that the landlord has a plan and license to reconstruct the building, the petition is not to be dismissed on finding that the period of license expired during the pendency of the proceedings. In a case where license is not required for reconstruction neither Plan nor license is to be produced before court for establishing the bonafides of the landlord before the Rent Control Court.
In an Eviction petition on the ground of reconstruction, it is not incumbent upon the landlord to produce the plan along with the petition.
The decree as passed by the High Court is sustained but it is directed that the landlords shall submit the plan of reconstruction of the building for the approval of the local authority. Only on the plans being sanctioned by the local authority, the decree for eviction shall be available for execution. Such sanctioned or approved plans shall be produced before the executing court whereupon the executing court shall allow a reasonable time to the tenant for vacating the property and delivering possession to the landlord-decree holders.
When the landlord possesses sufficient funds and has satisfied other conditions, it is not incumbent upon the landlord to produce the sanctioned plan and permission granted by the municipality for construction of building.
8. Ability to rebuild.
This condition is another precaution took by the legislature to safeguard the interest of tenant as well as the society. It is patent that a person does not have ability to rebuild, will not reconstruct the building. In order to decide the capacity to rebuild, the Court can take into consideration of the estimated expenses for the proposed construction relying on the plan produced by the landlord. On the basis of that estimation the landlord has to prove his capacity.
Ability to reconstruct the building is a matter to be inferred from totality of evidence adduced and what has to be satisfied is the capacity to raise funds for reconstruction. For this regard the following facts will have a bearing namely the status of the person, his position in the society, his financial back ground etc. It is not necessary to go into minute details.
“Ability” means “sufficient power, capacity (to do), cleverness or talent”. So, even if the landlord is not possessed at present of the entire amount required for the construction, it is enough if he satisfies the court that he has got the power, capacity and the talent to raise funds and carry on the construction.
Sufficient means is not the sole criterion for determining the claim of the landlord as reasonable and bonafide to demolish and reconstruct. His application need not necessarily fail if he has not adduced evidence in regard to his possessing of sufficient means, as it is only one of the circumstances to be taken into consideration.
It is not a requirement of law that the landlord should jingle the coins before the court. It is not necessary that the landlord should produce the money before the court to show that he has means to rebuild. Facilities offered by financial institution can also be availed of or assistance can be sought from other persons.
9. The Proposal of reconstruction is not made as a pretext for eviction
Before ordering eviction under the ground of reconstruction the rent control court has to satisfy that the proposal of reconstruction is not made as a pretext for eviction. Proposal is not made for a pretext for eviction is an inference to be drawn based on the totality of the facts established in the case and cannot be said to be an element or fact separately to be proved as it is incapable of adducing any direct evidence to show that it is not a pretext for eviction. Availability of a suitable site with landlord in the vicinity of the tenanted building is totally irrelevant.
10. Condition subsequent to eviction (first proviso)
Provided that the landlord who evicts a tenant and does not reconstruct completely the building within a time which may be fixed or extended by the Rent Control Court, shall on a petition before that Court be liable to a fine of rupees five hundred, if it is proved that he has willfully neglected to reconstruct completely the building within such time:
When eviction is ordered on the ground of bonafide own use and reconstruction, a direction to provide one room to the tenant in the reconstructed building is not legal. Further the court when orders eviction under this section time has to be fixed for reconstruction of the building. When no time is fixed in the order it should be presumed that it should be reconstructed within a reasonable time. While ordering eviction under Section 11(4) (iv) the Rent Control Court can fix a time limit within which the building is to be constructed and direct that in the reconstructed building the tenants will have to be provided accommodation. The right of option to the tenants secured to him the right to come back to the building after reconstruction. In the reconstructed building the tenant must get more or less the same advantage as he had earlier.
11. Rights available to the tenant after eviction (second and third proviso)
Provided further that the Court shall have power at any time to issue directions regarding the reconstruction of the building and on failure of compliance by the landlord, to give effect to the order in any manner the Court deems fit and in appropriate cases to put the tenant back in possession or award to the evicted tenant damages equal to the excess rent he has to pay for another building that he is occupying in consequence of such eviction:
Provided further that the tenant who was evicted shall have the first option to have the reconstructed building allotted to him with liability to pay its fair rent: or
The question whether the building is suitable for tenant to reoccupy for continuing his business is a material question. The tenant need not be allotted identical space or shape, but he must get more or less same advantage as before. The 3rd proviso to S. 11 (4) iv should not be constructed to make it inoperative. When a building occupied by several tenants is reconstructed, it cannot be said that each tenant has an option to get in the reconstructed building the same portion which he was occupying in the old building. There is no provision in the Act which says that a particular tenant has got the right of first option in precedence to the other tenants. In appropriate case the Court can even allow the tenant to reconstruct the building at his cost, if the landlord declines to reconstruct the building after demolition. In a case where the landlord persists in his unreasonable refusal to reconstruct or to complete the construction within the time specified, the Court can permit the tenant to carry out the construction. If the existing building remains without being pulled down, the court can direct the landlord to put the tenant back in possession. If the landlord fails to start reconstruction after obtaining possession, the court can permit the tenant to construct the building in accordance with the plan. The tenant in such a case must be allowed to adjust the cost incurred by him in the rent which accrues later. The Court has power to permit the evicted tenant to carry out reconstruction if the landlord neglects to reconstruct but this power is to be used only in exceptional cases where the court is completely satisfied that there has been willful neglect on the part of the landlord and the failure to reconstruct is attributable almost solely to such neglect.
The wide powers envisaged in the proviso to Section 11 (4) (iv) include the powers even to permit the affected tenant, in appropriate cases, to carry out the reconstruction if the landlord persists in his unreasonable refusal to complete reconstruction.
Substantially the same area of accommodation must be made available to the tenant in the reconstructed building. The landlord cannot insist upon fanciful rentals. The tenant need pay only the fair rent as may be fixed by the rent control court.
12. The third proviso
“Provided further that the tenant who was evicted shall have the first option to have the reconstructed building allotted to him with liability to pay its fair rent: or”
In order to protect the interest of such evicted tenants the statute inserted the third proviso, which gives the right of first option to the tenant to occupy the reconstructed building. Imposition of fine on the landlord depends upon proof that the landlord has willfully neglected to reconstruction need not depend upon any such proof of willful neglect. The powers include even the power to allow the affected tenant to reconstruct the building at his cost, if the landlord declines to reconstruct the building after pulling it down.
Eviction ordered on the ground that landlord required the premises bonafide for the purpose of business after demolishing the present building and putting up a new building in place. Since the order of eviction is based mainly under section 11 (3) the obligation to provide accommodation to the tenant in the new building will not arise. A close look at section 11 (4) (iv) would show that the provisos are not to be read in isolation and the right to seek eviction for the purpose of reconstruction has to be read in the light of the content of the provisos. The provisions in the other two provisos furnish the background to the right of option under the third proviso.
13. Single Petition Maintainable
A single petition for eviction of tenants who are in possession of various rooms for reconstruction is possible. What is important is that the tenants shall be given an opportunity to resist the claim and they should raise objection at the 1st instance & not at the appellate stage. Joint trial can be allowed in petition for eviction of several tenants occupying rooms of the same building. If joint application is not allowed, it may lead to injustice, in multiplication of evidence, chance of conflicting findings, delay in disposal of matters and reallocation of reconstructed building of the tenant. The landlord can file a single petition under section 11(4) iv against various tenants who are in occupation of distinct portion of the same structure in the event of which there is no misjoinder of cause of action or misjoinder of parties and the petition is not hit by multifariousness. But Landlord cannot unite different causes of action in a single petition filed against various tenants whether they are in occupation of the same building or different buildings.
Single petition for eviction is maintainable even when there are two landlords and two buildings but the tenant is the same. The Rent control court has inherent power to direct joint trial of cases, if the joint trial will sub serve the interest of the parties and is necessary in the interest of justice. It is permissible to unite several causes of action against different tenants in an action under S.11(4)(iv) of the Act or against a single tenant occupying the full shop room.
Landlord and his brother come to have absolute ownership over definite portion of the building which was occupied by a single tenancy. The petition filed under section 11 (3) and 11 (4) iv, it is sufficient that eviction under section 11 (3) be passed.
The non examination of any one of the landlords to testify regarding the bonafides under section 11 (4) iv to reconstruct the building is not fatal. The bonafide need for own occupation under section 11 (3) is best established by evidence given by the needy person, whereas bonafides under section 11 (4) iv is capable of establishing by tangible items of evidence. Non examination of landlord in a petition under section 11 (4) iv is not fatal. Bonafide under section 11 (4) iv is a matter to be inferred in an objective manner on an assessment of materials produced before the court.
Two landlords can file a joint petition for eviction of tenants in their respective buildings. There is no misjoinder of parties. The Rent Control Court has got power to consolidate. A suit is not barred within the meaning of O.7 R.11(d) even if it is bad for misjoinder of parties or cause of action. Procedure is a handmaid of justice. Here the building (the whole structure) is to be demolished and reconstructed by the petitioners who own the respective portions of the same structure. Even a suit defective for misjoinder of parties or cause of action is not barred by law.
14. The limitation for applying for re-allotment.
The section does not provide any particular time limit for applying for re-allotment after reconstruction. The plain reading of the provision would show that the landlord is bound to inform the tenant about the completion of reconstruction as the wording ‘first option’. If the landlord fails to do so tenant should approach the landlord within reasonable time. Such reasonable time should be counted from the knowledge of completion of reconstruction availed of to the tenant. If the landlord refuses to re-allot the tenant can approach the Rent Controller by way of filing an IA in the same OP in which the order of eviction was passed, for exercising his first option.
15. Penal Provisions
The penal provision for not reconstructing after demolition of the building as per an order of Rent Control Court on the ground of reconstruction is provided in the proviso to this sub-section itself.
Provided that the landlord who evicts a tenant and does not reconstruct completely the building within a time which may be fixed or extended by the Rent Control Court, shall on a petition before that Court be liable to a fine of rupees five hundred, if it is proved that he has willfully neglected to reconstruct completely the building within such time:
The power to award damages to a tenant who was compelled to take another building on lease, pending completing of reconstruction will have application only where reconstruction is made very late.
Rented Building Owners Association Kerala 
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