Determination of fair rent

Section 5. (1) The Rent Control Court shall, on application of the tenant or landlord of a building fix the fair rent for such building after holding such inquiry as it thinks fit.
(2) In fixing the fair rent the Court shall take into consideration the property tax or house tax fixed for the building at the time of letting in the property tax register or house tax register of the local authority with in whose area the building is situated :
Provided that in the case of –
(i) any residential building, or
(ii) any non-residential building, excepting a building to which fittings have been affixed or in which machinery have been installed and such fittings or machinery have been excluded from valuation for the purpose of fixing the property tax or house tax by a local authority.
The fair rent fixed may in proper cases be lower than, but shall in no case exceed by more than fifteen percent, the monthly rent on the basis of which the property tax or house tax for the building, prevailing two years immediately before the date of the application, was fixed, or if the building was not assessed to property tax or house tax before the said period of two years, the monthly rent on the basis of which the property tax or house tax prevailing immediately before the date of the application was fixed.
(3) If there is no property tax or house tax fixed for the building or if it is not based on a rental basis or if the building is situated in an area which is not a City, Municipality, Panchayat or in any other local authority, the fair rent shall be fixed after taking into consideration the prevailing rates of rent in the locality for similar accommodation in similar circumstances during the twelve months preceding the letting.
(4) In case the allotment of the building is made by the Accommodation Controller, he may provisionally fix the fair rent for the building and the Rent Control Court may, on application by an aggrieved party modify the fair rent so fixed.
(5) The Rent Control Court shall intimate the fair rent of the building fixed to the local authority within whose jurisdiction the building, in respect of which the fair rent has been fixed, is situated. The local authority on receipt of such intimation shall make a record of the fair rent fixed in the register kept for the purpose and shall make the register available for inspection in such places and in such manner as may be prescribed. The register so prepared shall be kept up-to-date so as to contain full particulars in regard to the rent fixed in respect of a building by the Rent Control Court and also the subsequent variation thereto made by the said Court.
(Section 5 had been struck down by Isaac Ninan v. State of Kerala. 1995 (2) KLJ 555)
(Edger Ferus v. Abraham Ittycheria (2004 (1) KLT 767) laid down that S.5 (1) is constitutional and continues on the statute book)

1. Scope
This section gives the Rent Control Court to fix fair rent of a building. In Issac Ninan v. State of Kerala (1995 (2) KLT 848: 1995 (2) KLJ 555) this section was declared unconstitutional and hence void. In 2004 in Edgur Ferus v. Abraham Ittycheriah (2004 (1) KLT 767) sub section 1 of this section was held constitutionally valid in view of doctrine of severability. Edgur Ferus went in appeal in the Supreme court (2009 (4) KLT 673 (SC)) and the Apex court found no infirmity in the verdict of the High Court. The Judgment in Edger Ferus has been approved by the Supreme Court. Thus the Rent Control Court has got jurisdiction to fix fair rent of a building, such fair rent can be fixed using the criteria stipulated in Edgur Ferus case. While fixing the fair rent, the Rent Control Court has got power to allow periodical increase also.
Rent Control Act the Authority has power not only to fix fair rent but also to allow reasonable modifications such as allowing a periodic increase of 10% in the fair rent, every year to the rate so fixed at reasonable intervals, in the order fixing fair rent.
It is now laid down beyond doubt that S.5(1) is perfectly constitutional and continues on the statute book and is available for enforcement. Fair rent can now be fixed under S.5(1). In a proceeding for fixation of rent under section 5 (1), the Rent Control Court has no jurisdiction either to order eviction or deposit of rent under S.12 of the Act.

3. Fair Rent
The pegging of the rents at the 1940 rates had discouraged building construction activity which ultimately is likely to affect everybody and therefore in order to encourage new constructions exempted them altogether from the provisions of the Act. It did not proceed on the basis that all tenants belonged to the weaker section of the community and needed protection and that all landlords belonged to the better off classes. It confined the protection of the Act to the weaker section paying rents below Rs. 250. It is clear. therefore. that the Madras Legislature deliberately proceeded on the basis that fair rent was to be fixed which was to be fair both to the landlords as well as to the tenants and that only the poorer classes of tenants needed protection.
A fine-spun line of thought, often forgotten but fundamental to the rent restriction scheme, deserves mention here. Fair rent is not always what is fair between particular landlord and his tenant, considering their relative economic circumstances. Fair rent is not what a tenant has acquiesced in for reasons of prudence but what the law prescribes to be fair in spite of his consent to pay the higher rent. That you cannot acquiesced away your right to fix fair rent is basic to this type of legislation. As per Edger Ferus case the court can fix the fair rent quinquennially.
In Aboobaker v. Vasu it was held that Civil court has got power to fix fair rent, Edger Ferus v. Abraham Ittycheria directed the civil courts to transfer all fair rent applications to rent control court. The Supreme Court did not find any infirmity in the order of the Kerala High Court. Hence the Edger Ferus v. Abraham Ittycheria stands as good law.

4. Issac Ninan v. State of Kerala
Constructing buildings and letting then out for rent to tenants would also fall within the ambit of “business” in Art.19(1)(g) of the Constitution. The phrase reasonable restriction connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interest of general public. Legislation while arbitrarily invades the right cannot be said to contain the quality of reasonableness unless it strikes a proper balance between the freedom guaranteed in Art.19(1)(g) and the social control permitted under clause (6) of Art.19, it must be held to be warranting in that qualities. If so, the combined operation of S.5, 6 and 8 of the Act is a gross invasion on the right of a landlord to carry on business. Section 5 (1) is reinstated and the Landlord or the tenant can approach the Rent Control Court to fix fair rent.

5. Matters to be considered while fixing fair rent
The Rent Control Court can fix rent on application by the landlord or the tenant. The Rent Control Court shall consider the property tax or house tax fixed by the local authority. If no tax is fixed for the building the fair rent shall be fixed on the basis of rent for a similar accommodation in the similar circumstances.
The Rent Control Court can fix rent on application by the landlord or the tenant. The Rent Control Court shall consider the property tax or house tax fixed by the local authority. If no tax is fixed for the building the fair rent shall be fixed on the basis of rent for a similar accommodation in the similar circumstances.
Proceedings under S. 5 for fixation of fair rent pending before Civil Court should be transmitted suo-motu by the Civil Court to concerned Rent Control Court.
Even if S.5 is taken to be not available, that does not in any manner deprive the Rent Controller of his jurisdiction to fix the fair rent.
The jurisdiction of the civil court under section 9 of the CPC should still be available for determination of fair rent of a building of which the provisions of the Rent control Act apply.
In Aboobacker v. Vasu it is decided that the civil court has got jurisdiction to fix fair rent on criteria decided in the judgment. Section 116 of Transfer of Property Act is void to the extent of restriction in revision of rent as it would amount to unreasonable restriction affecting the fundamental rights guaranteed under Article 19 (1) (g).
Justice K.S. Radhakrishnan and Pius C. Kuriakose has reinstated S. 5(1) of the Act and conferred jurisdiction to the Rent Control Court the power to fix fair rent on criteria given in the judgment. Even if there is no provision for periodical revision of the rent in the rent deed the landlord can approach the Rent Control Court for revision of rent. Rent Control Court while fixing fair rent could take note of (i) the inflation and resultant reduction in the purchasing power of money, (ii) variation in the cost of living index in the area since commencement of the lease, (iii) demand for accommodation and availability of the building in the locality, (iv) prevailing rent in the locality for the similar accommodation, (v) the type of construction, (vi) the general or special amenities provided in the building, (vii) whether residential or non residential, (viii) Annual rental value of the building at the time of filing application for fair rent, (ix) revision or fresh imposition of municipal taxes, cess rate in respect of other increase in the charge of electricity or water consumption by the tenant and also by the landlord, (x) Increase in account of repairs are to be taken into account. This decision was approved by the Supreme Court. Having heard learned appearing counsel for the parties and having perused the record, we do not find any infirmity in the impugned order of the Kerala High Court.
Unregistered lease deed cannot be pressed into service to create any right for revision of rent. Unregistered lease deed could at best be looked into for ascertaining the commencement of possession, rate of rent or similar other provisions which are collateral to the principal transaction. Since the document is unregistered the remedy available is to approach the Rent Control Court for fixation of fair rent.
The Rent Control Court has got jurisdiction to fix fair rent. The only thing is that the Rent Controller could not rely on Ss. 5, 6, or 8 or any of the restrictions contained therein for fixing fair rent. Fair rent has to be understood as a rent a willing tenant would pay to a willing landlord, for a building commensurate with the rent prevalent in the locality and the nature and location of the building.
The rent originally fixed/or arranged between the parties in 1962 was Rs. 3 per month. This is unfair now. Hence we direct that the rent of Rs 75 per month should be paid.
Enhanced rate of rent fixed by the Supreme Court of India having regard to location, prevailing rental rate and the fact that premises had been taken for residential use but put to non residential use. In an eviction petition The Supreme Court set aside the eviction decree and considering the insignificant rent paid by the tenant ordered the amount of rent to be increased. Supreme Court in exercise of jurisdiction under ‘Article 136’ (Special Leave) enhanced rent from Rs. 75/- to Rs. 300/- having regard to enormous increase in rent in the areas concerned.
Basis of assessment made by the local body could normally be accepted as correct, because assessment is expected to be made on the basis of the prevailing rates of rent for similar accommodation in similar circumstances.
Apex court of India gives some guidelines to fix fair rent so as to reduce unnecessary rent control litigation and to mitigate the injustice caused to the landlord. Majority of the rent control cases are filed because landlords do not get reasonable rent akin to market rent, then on one ground or the other litigation is initiated. So before saying omega, we deem it our duty and obligation to fix some guidelines and norms for such type of litigation, so as to minimise landlord – tenant litigation at all levels. These are as follows: –

(i) The tenant must enhance the rent according to the terms of the agreement or at least by ten percent, after every three years and enhanced rent should then be made payable to the landlord. If the rent is too low (in comparison to market rent), having been fixed almost 20 to 25 years back then the present market rate should be worked out either on the basis of valuation report or reliable estimates of building rentals in the surrounding areas, let out on rent recently.
(ii) Apart from the rental, property tax, water tax, maintenance charges, electricity charges for the actual consumption of the tenanted premises and for common area shall be payable by the tenant only so that the landlord gets the actual rent out of which nothing would be deductible. In case there is enhancement in property tax, water tax or maintenance charges, electricity charges then the same shall also be borne by the tenant only.
(iii) The usual maintenance of the premises, except major repairs would be carried out by the tenant only and the same would not be reimbursable by the landlord.
(iv)But if any major repairs are required to be carried out then in that case only after obtaining permission from the landlord in writing, the same shall be carried out and modalities with regard to adjustment of the amount spent thereon, would have to be worked out between the parties.
(v) If present and prevalent market rent assessed and fixed between the parties is paid by the tenant then landlord shall not be entitled to bring any action for his eviction against such a tenant at least for a period of 5 years. Thus for a period of 5 years the tenant shall enjoy immunity from being evicted from the premises.
(vi) The parties shall be at liberty to get the rental fixed by the official valuer or by any other agency, having expertise in the matter.
(vii) The rent so fixed should be just, proper and adequate, keeping in mind, location, type of construction, accessibility with the main road, parking space facilities available therein etc. Care ought to be taken that it does not end up being a bonanza for the landlord.
These are some of the illustrative guidelines and norms but not exhaustive, which can be worked out between landlord and tenant so as to avoid unnecessary litigation in Court. This case is based on UP Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972, which had freezed the rent to the 1972 level and caused injustice. The UP Legislature has already passed UP Regulation of Rent and Eviction Act 2010.

6. Periodical fixation
Though there is no specific provision for periodical fixation of fair rent, the general provisions of fixation of fair rent alone are to be considered. The change of circumstances including the increase of population, scarcity of buildings, increase in living cost index etc. would compel for fixation of fair rent periodically. In order to avoid annual applications from the landlord or tenant the Hon’ble High Court, opined that ‘Landlord or the tenant as the case may be, can approach the Rent Control Court for revision of rent quinquennially. Rent Control Act the Authority has power not only to fix fair rent but also to allow reasonable modifications such as allowing a periodic increase of 10% in the fair rent, every year to the rate so fixed at reasonable intervals, in the order fixing fair rent.

7. Enhancement of Rent during eviction petition

The relief of enhancement of rent during rent control proceedings until eviction takes effect is not inconsistent with the other relief for eviction. Both the relief can be simultaneously given.

The Application for enhancement of rent during the eviction proceedings at the appellate stage is justifiable. The Appellate authority enhanced the rent from Rs. 500 per month to Rs. 9600 per month, Order of the Appellate Authority modified by directing the appellant to pay Rs. 5,000/- per month provisionally till the disposal of the appeal pending before the Appellate Authority.

8. Interim fixation of fair rent
In Aboobacker v. Vasu it is decided that the Rent Control Court or the Appellate Authority may fix fair rent in cases before them. The latter case by the same bench that is Edger Ferus v. Abraham Ittycheria the position is not altered. Hence the Rent Control Court and the Appellate Authority has got jurisdiction to fix interim rent, even if the petition is for eviction on any other ground.
The monthly rent of Rs.700/-, for building having an area of 600 sq. ft. is very low. We are therefore inclined to re-fix the rent tentatively at Rs.4,500/- per month prospectively with effect from 01/10/2010. We make it clear that the above re – fixation is tentative and it is open for either party to apply for regular fixation of fair rent, if they are aggrieved. Till such time as fair rent is fixed, the respondent shall pay rent at Rs.4,500/- per month.
During the pendency of appeal, the appellants had filed an application seeking a direction against the respondent for payment of rent @ Rs.50,000/- per month. The application supported by an affidavit, alleges that the market rent of the premises in question was not less than Rs.50,000/- per month when the application was filed. A Valuation Certificate issued by Chartered Engineer & Approved Valuer, is also enclosed with the application, according to which the market value of the plot in question was not less than Rs. 7,00,000/- per cent and the current market rent for the building not less than Rs. 8/- per square feet. As per the lease deed entered between the deceased owners and the respondents, the premises in question is constructed over an area measuring about 20 cents. The covered area is said to be 5000 sq. ft. or so. In the circumstances while the High Court was justified in tentatively revising the rent for the premises, the revision was not, in our opinion, adequate. Instead of Rs. 10,000/- determined by the High Court, the respondents shall pay Rs. 15,000/- per month towards rent. The same shall stand revised to Rs. 25,000/- per month w.e.f. 1.1.2009. The revision ordered by us is also tentative and shall not prevent the parties from seeking determination of the fair rent for the premises by instituting proceedings before the competent Court / authority in accordance with law.

9. Fixation of rent during the contractual Period
Declaration as to the binding nature of an agreement which is in force for 51 years. Rates were fixed in the contract but nothing therein to indicate that there is no power to revise rates. Successor was competent to revise rates, even during the contractual period. Because of lapse of many years old rates became unconscionable. Revision of rates held valid.

DB of High Court in Edger Ferus was justified in reviewing judgement in Issac Ninan and restoring S.5(1) of BRC Act 2021 (3) KHC 292

How to fix Fair rent of a building already let out, you can have your kindle book at

Public Nuisance

Section 133 (1) of Criminal Procedure Code

133 (1) Whenever a District Magistrate or a Sub-divisional Magistrate or any other Executive magistrate specially empowered in this behalf by the State Government, on receiving the report of police officer or other information and on taking such evidence (if any) as he thinks fit, considers-
(d) that any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighborhood or passing by and that in consequence the removal or support of such tree, is necessary.
Such Magistrate may make a conditional order requiring the person owning, possessing or controlling such building, tent, structure, within a time to be fixed in the order to remove, repair or support such building, tent or structure or to remove or support such tree; or, if he object so to do, to appear before himself or some other Executive Magistrate subordinate to him at a time and place to be fixed by the order, and show cause, in the manner hereinafter provided, why the order should not be made absolute.
(2) No order duly made by a Magistrate under this section shall be called in question in any Civil Court.

The provisions operate on different fields under different contingencies. Eviction of tenant is not the object & purpose of S. 133 being public purpose. The resultant eviction, if any, is only one of the results while achieving public purpose. Section 11 operates only where eviction of the tenant is involved. The private interest of a tenant is subject to public interest under S. 133. of Cr. P.C. Provisions of Kerala Buildings (Lease and Rent Control) Act is not a bar to proceeding under the Code of Criminal procedure.
The consideration for passing an order under S. 133 (d) of the Code of Criminal Procedure is substantially and fundamentally different from the consideration for passing an order of eviction S.11 (4) iv of the Act.

Landlord Requiring Additional Accommodation.

S. 11 (8)

(8) A landlord who is occupying only a part of a building, may apply to the Rent Control Court for an order directing any 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.

1. Scope
When the landlord and the tenant are occupying portions of the same building and the landlord requires additional accommodation for his personal use, the rent control law provides a ground for eviction of the tenant who occupies the remaining part of such building, provided that the advantage of the landlord outweigh the hardship that is caused to the tenant.
This section can be invoked only by the landlord (a) who shares his building with a tenant, (b) who requires additional accommodation for his personal use (c) where claim is bonafide and (d) who satisfies the Court that the hardship which might be caused to the tenant by eviction will not outweigh the advantage to the Landlord. If only all these four ingredients are established the landlord can succeed under S.11 (8).

Sub tenant acquired right of ultimate landlord. This does not extinguish the intermediate estate created by original landlord in favour of original tenant. Possession of a portion as sub-tenant will not entitle assignee landlord to seek eviction under 11 (8) Subtenant purchasing right of landlord would be entitled to evict the tenant under Section 11 (8). Protection under S.11(17) cannot be claimed by a tenant who is sought to be evicted under S.11(8).
2. Occupation v. Possession
Legal possession by itself does not constitute occupation. Possession must combine with something more to make it occupation. Mere possession by landlord is not sufficient. There must be occupation by the landlord. The landlord’s requirement should be supplementary to his existing use , i.e. he should use the building in his occupation, mere possession is not enough .

3. Additional accommodation

Additional accommodation sought for must be supplementary to the existing requirement of the landlord. Court cannot impose any restriction with regard to the use of the additional accommodation from which the eviction of the tenant is sought Additional accommodation need not be confined to expansion of an existing trade. “Additional accumulation” and “Personal use” are expressions with wide amplitude. Additional Accommodation can be availed even for a different business which the landlord conducts in part of the building. It need not be for expanding the business conducted by the landlord in part of the building. Additional accommodation under section 11 (8) can be for expansion of existing business or for new Business, to what use the additional accommodation should be put, is the choice of the landlord, provided that the test of bonafide under section 11 (10) shall be satisfied.
If the landlord feels that additional accommodation is necessary and if there are sufficient grounds or justification in support of it and then it is not for the Court to find out whether even without such additional accommodation the landlord could somehow manage to carry on. Even in a case where an additional accommodation is sought as a luxury, the relief should not be denied to the landlord.
In a suit by landlord who is already in occupation of a portion of the building and needs additional accommodation which the tenant is occupying in the building for his personal occupation, once it is held that the landlord requires additional accommodation for his personal use he is entitled to utilize it to best suit his requirement. The condition in which the additional accommodation is to be used by the landlord cannot be dictated by the tenant. The landlord may use it as it exists or he may use it after necessary repairs, additions or alterations to suit his requirements. The tenant has no say in such matters.
The test of bonafides under Section 11 (8) read with Section 11 (10) is not whether the landlord could merely afford to live without the additional accommodation, but whether in seeking the additional accommodation the landlord is pleading an honest purpose and not merely setting up an excuse to obtain eviction.
The sub-section can have application only when landlord is occupying a part of the building and he wants to occupy the portion occupied by the tenant also for his personal use by way of additional accommodation.

4. Personal use
The phrase ‘additional accommodation for personal use of the landlord’ may relate to residential purpose as well as for non-residential purpose. Where it relates to non-residential purpose there is no reason to restrict personal use of the landlord for the purpose of only expansion of the existing business. He can put the additional accommodation, so long as he bonafide need it, to any business or purpose of his choice. All that the section requires is that the landlord must require additional accommodation for his personal use. It is certainly for the landlord to decide what business he will carry on. A Court will not be justified in saying that he requires the building bonafide for his own use only if he requires it for expanding his existing trade.
The tenant cannot dictate the landlord to remain content with a smaller and less convenient premise in preference to the tenanted premises which is more spacious and more advantageous. It is not for the court also to find out whether even without such additional accommodation the landlord could somehow manage to carryon. The need for additional accommodation for personal use is wide enough to include use by the members of the landlord’s family. On the death of the landlord the legal heirs get the right of personal use unless they are discontinuing the business. Landlord dies during the pendency of petition under S.11 (8). Additional accommodation for the personal use of the landlord cannot survive him.
When a landlord requires additional accommodation for the business of the partnership of which he is an active partner, the requirement is for his personal use. Landlord who is in partner of a firm seeking additional accommodation can be taken as personal use and the claim is maintainable.
Once the Rent Control Court orders eviction under S.11 (8) the choice regarding the mode of its further use is entirely that of the Landlord.

5. Part of building
Portions occupied by the Landlord and tenant of the same building used as an integral unit cannot be treated as different buildings in the context of claim under section 11 (8).
It is not necessary that rooms should be adjacent. It need only be form part of the same building though separated by a few rooms. The requirement is only that landlord and tenant should occupy portions of the same building. The term building in S.11 (8) is whether the two portions form part and parcel of one and the same large structure with a common roof. Tenant can be evicted under S.11(8) even if rooms are not adjacent.

6. Section 11(3) and Section 11(8) distinction
Section 11(8) is more or less similar to Section 11(3) in its impact. Due to the presence of first and second proviso to Section 11(10) the interests of the tenant is safeguarded in an eviction under Section 11(8). Further the bonafides of the petition also can be questioned.
Distinction between 11 (3) and 11 (8) are 1. In 11 (8) comparative hardship of the landlord and tenant is to be considered. But in 11 (3) whether the tenant is dependent on the business carried on in the premises for his lively hood and whether there is any suitable building in the locality for the tenant to carry on such trade or business is to be considered. 2. and in the case of 11 (3) the possession of another building in the same city town or village will be a bar for passing an order of eviction. While on the contrary in the case of 11 (8) occupation of part of the building adjacent to the tenanted building is the basis of claiming eviction. Thus it is seen that the requirements of sub section 3 and 8 are entirely different.
To resist eviction under section 11 (8) the tenant has to prove the hardship that cause to him outweigh the advantage of the landlord and the test of bonafide is not so rigorous as in section 11 (3). Question of bona fides is certainly relevant not only in S.11(3) and S.11(8) but also in S.11(7).

Section 11 (3) and 11 (8) are mutually exclusive, entirely different and the requirements are also different. The option available to a landlord under 11 (3) is hedged around by 4 provisos, to prevent its misuse. The conditions for availing eviction under S.11 (8) are that (i) He (Land lord) is occupying a part of the building (ii) tenant is occupying the remaining part (iii) the landlord requires the additional accommodation for his personal use. In the former section the occupation of a room by the landlord is an impediment for eviction which in the latter section occupation on of a room in the same building is the main requirement for an order of eviction. In the former section the petition can be put forward for the bonafide requirement of the dependents but in latter only requirement of the landlord’s personal use is considered. The tenant cannot dictate the condition in which the additional accommodation is to be used by the landlord. The landlord may use it as it exists or he may use it after necessary repairs additions or alternations to suit his requirements. The tenant has no say in such matters.
Sub-section (3) and (8) of Section 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 fact that landlord is in possession of a part of the building will not exclude the operation of sub-section (3).
Sub-section (3) and (8) of Section 11 are mutually exclusive. The second proviso to Section 11 (3) prohibit an eviction order under 11(3) 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 his trade. This requirement is absent in Section 11 (8). The first proviso to section 11 (10) states that the Rent Control Court shall reject an application under 11 (8) if it is satisfied that the hardship which may be caused to the tenant will outweigh the advantage to the landlord. The concept of comparative hardship is not available in Section 11 (3). These factors make these two sections mutually exclusive.
The test of bonafide need under Section 11 (3) would be more rigorous than the test under Section 11 (8). If the case of the landlord is that he is residing in a part of building and he requires another part of the building in occupation of the tenant for his occupation so as to have additional accommodation and not to transplant himself from the portion he is residing to the new portion then the case squarely falls within Section 11 (8). If on the other hand a person is occupying a portion of the building, another portion is in the possession of the tenant and he wants that portion as he prefers to occupy that portion of the building and not the portion he had been occupying so far it will be as claim that falls under Section 11 (3).
Where the landlord requires additional accommodation for himself and the family members, it would come under S.11 (8). If the landlord requires another portion in the occupation of his tenant to accommodate other members of his family dependent upon him, it would be governed by S.11 (3) of the Act. However, if both the grounds are available to the landlord, it is open to him to apply for eviction on either of the grounds or both.

S.11 (3) and 11 (8) are not mutually exclusive. It may be that even without the additional accommodation, the landlord may manage. But there are many people who can afford luxuries. There are no reasons to deny that to them so long as the law does not prohibit their enjoyment. The test of bonafides under S.11. (8) read with S.11 (10) is not whether the landlord could merely afford to live without the additional accommodation, but whether in seeking the additional accommodation the landlord is pleading an honest purpose and not merely setting up an excuse to obtain eviction.
The ingredients of section 11 (3) and 11(8) are distinct, different and mutually exclusive. Standards necessary for establishing bonafides in petition under section 11(8) is not so stringent as in petition under section 11(3).

Tenant Ceases to occupy

(S. 11 (4) (v))

if the tenant ceases to occupy the building continuously for six months without reasonable cause.

1. Object:
A tenant is liable to be evicted if he ceases to occupy the tenanted premises without reasonable cause for a continuous period of six months immediately preceding the date of the suit. The question is whether the tenant occupies the building and not whether he has got legal possession. Legal possession is always with the tenant until an eviction order is passed and executed and landlord gets the possession in a lawful manner. Legal possession combined with actual physical use of the building is occupation. The rent law has a duty to avoid scarcity of the building as well as the misuse and non-use of the building. Section 11(10) has no application to a proceeding under this subsection. Physical possession with legal possession coupled with use of the building constitutes occupation.
There is no inherent inconsisitence between ground u/s 11 (4) I and 11 (4) v hence the grounds of cessation of occupation and subletting will be simultaneously available to the landlord.

2. Ceases to occupy:
In order to constitute the ground of ‘ceased to occupy’, it is imperative on the part of the landlord to establish that not only was the business closed, but also that the tenant had withdrawn from the business activity with the intention to stop the business for all times to come. A casual closure of the shop for certain exigencies would not mean that he had ceased or abandoned his tenancy rights with the intention that he no longer interested in occupying the shop. However the author’s opinion is that what is the intention of the tenant is not relevant, whether he had kept the building for the specified period unoccupied is the relevant question.
The landlord who seeks eviction under Section 11 (4) (v) should establish not only that the tenant was not in occupation of building without reasonable cause continuously for six months but also that he was not occupying the building on the date of the petition.
The court must be fully satisfied that there was an intention on the part of the tenant to shift his residence to an alternative place, for passing an order of eviction on the ground of non occupation. The shop remained closed due to arbitration procedure between the tenants they are liable to be evicted as there should have been actual user of shop by them. Occupation by servants cannot be construed as occupation by master. The occupation by the tenant is the occupation by the tenant himself and not by anyone else and leaving some belongings of the son of the tenant in the leasehold premises would not amount to occupation to defeat the eviction sought for under S.11(4)(v).

Occupation in the context of S.11(4) (v) means only physical occupation. Cessation for the purpose of S.11(4) (v) must continue up to the date of filing of Rent Control petition. If it is seen that no business is being carried on in the premises and that the premises are remaining closed there will be justification to presume that there has been cessation of occupation.
Tenant shifted to a foreign country leaving his mother and brother in the house who were regularly paying rent to the landlord. Eviction cannot be ordered on the ground that tenant ceased to occupy the building. The term “family” has to be given a liberal and broad construction so as to include near relations of the tenant.

4. Possession and Occupation
Legal possession by itself does not constitute occupation. Possession must combine with something more to make it occupation. It cannot be inferred that the tenant was doing business merely because there was a telephone in the room and the room remained opened when the commissioner visited. Once landlord could establish that Tenant has ceased to occupy the building continuously for six months prior to filing the petition he is entitled to get an order of eviction. Landlord need not establish that Tenant had abandoned the building. The word occupy used by the statute would show that the premise be put to use. Mere presence or intermittent opening of the tenanted premise will not suffice occupation. The tenant should actually use the building. Occupation in the context of S.11 (4) means physical occupation when it pertains to a residential building it means occupation through residence and when it pertains to commercial building it means occupation by conduct of business.
If a building let out for residential or non-residential purpose always remains closed the inference is that it is not used or occupied. The Fact that some of the belongings of the tenant are kept in the building by itself is not sufficient to show that the building is being used. The tenant was not carrying on any business in the premises and had removed all the stock in trade furniture and fittings and had kept only almirah. He was held to have ceased to occupy the premises.
Once landlord could establish that tenant has ceased to occupy the premises continuously for six months prior to the filing of the petition he is entitled to get an order of eviction under this section. The word occupy used in the statute would show that the tenant cannot be heard to contend that he is having physical possession of the premises though not in occupation. It is not necessary that the tenant should abandon the building so as to attract S.11 (4) v. The word ‘occupy’ used by the statute would show that tenanted premises be put to use.
Occupation includes possession as a primary ingredient, for there can be no occupation without possession. But possession must combine with something more to make it occupation. Legal possession does not by itself constitute occupation Under S.11 (4) (v) of the Act it is doubtless that the word occupation is used to denote the tenant’s actual physical use of the building either by himself or thorough his agents or employees. Hence, the tenant cannot upset the presumption of non-occupation by merely pointing out features of his legal possession of the premises. Occupation means physical occupation when it pertains to a residential building occupation means occupation through residence and when it pertains to a commercial building it is occupation by conduct of business.
Legal possession of the building by the tenant will, by itself, be not sufficient for refusing an order of eviction unless the tenant proves that there was reasonable cause for his having ceased to occupy the building.

5. Reasonable cause:
What is reasonable ground is depended on the facts and circumstances of each case. Inter-se dispute between the legal heirs of the original tenant is not a reasonable cause for non user of the tenanted premises continuously for six months. Transfer of a government servant is not a reasonable cause for not using the premises. No rigid formula can be evolved for proof of reasonable cause; it has to be evaluated depending on the facts and circumstances of each case.
The omission of the words without reasonable cause in the petition will not disentitle the landlord to get eviction on the ground of tenant ceases to occupy the building for more the six months without reasonable cause. Even if the pleading are lacking or vague if both parties understood what was the case pleaded and put forth with reference to the requirement of law and placed necessary materials before the Court neither party is prejudiced.
In a case where there is stout denial of the allegations regarding cessation, the tenant is not justified in banking upon any “reasonable cause” which was neither pleaded nor proved to contend that the cessation was justifiable.

6. Subsequent Events
Even if landlord has sold away building, such sale cannot be a subsequent event having a fundamental impact on the landlord’s right to evict the tenant under S.11(4)(v). Contention of the tenant that the building was sold during the pendency of eviction petition which is a subsequent event and should lead to dissolution of the order of eviction under 11(4)v. landlord’s entitlement to get an order of eviction under 11(4)v depends not directly on the merits of his claim but on the entailment of the liability for eviction by the tenant due to any action or inaction on the tenant’s part. Even if landlord has sold away building, such sale cannot be a subsequent event having a fundamental impact on the landlord’s right to evict the tenant under S.11(4)(v)/

7. How to prove:
Return of registered notices repeatedly with endorsements like “door closed”, the tenant’s absence in the premises, presence of old posters on the face of the door, heap of settled dust, clusters of spider webs, which raises a feeling of being closed for a long period. The unit of electricity used during the relevant period. All these aspects can be brought in evidence by way of taking out commission for local inspection.
Admissions made by the tenant are a best piece of evidence. Evidence by the neighbors and adjacent shop proprietors, records from the Municipal Authorities to show about the non-payment of professional tax and lack of license for the relevant period are relevant. The absence of records to be kept under the Kerala Shops and Commercial Establishments Act and Rules and under the provisions of Minimum Wages Act and disconnected electricity – water supply connections etc. would probabalise the case of the landlord. The discontinuation of the filling up of the entries in the account books and the failed state of getting the monthly statements certified by the Sales Tax Authorities, according to VAT, if VAT is applicable to the tenant’s business.

Mere fact that electricity was disconnected would not mean that the tenant was not conducting business in the tenanted premises. The electricity meter reading is important evidence because prima facei non-consumption shown by the meter reader can lead to a presumption that no electricity has been consumed unless proved otherwise. The landlord proved the cessation of occupation by showing (1) there was no electricity consumption for six months (2) Employees of Electricity Board found the premises locked during periodical visits (3) No sale or purchase of goods took place during the relevant period on the premises. (4) No account book was produced. Non consumption of electricity and report of the commissioner that the premise was not used for three years, it was held that the tenant was liable to be evicted.
in a case filed under S.11(4)(v), the best mode of proof of cessation of occupation is to conduct surprise inspection of the petition schedule building by the Commissioner. Landlord has to bring in prima facie evidence in support of the allegations in the form of a report by a Commissioner on the basis of at least a surprise local inspection.

Reconstruction

(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.

Tenant Acquiring Building

(S 11 (4) (iii) if the tenant already has in his possession a building or subsequently acquires possession of or puts up a building, reasonably sufficient for his requirements in the same city, town or village;

1. Object

If the Tenant has in his possession a building reasonably sufficient for his requirements in the same city, town or village or if the tenant subsequently acquires possession of a building reasonably sufficient for his requirement or if he puts up a building reasonably sufficient for his requirement in the same city, town or village the landlord can apply to the Rent Control Court for an order of eviction of the tenant.
A tenant who is liable to be evicted under S.11(4)(iii) is landlord like, as he enjoys, possession of more buildings than necessary for his requirements.

2. Has or acquires possession
Acquisition of plots ideal for construction of building or where construction of storied buildings where started will not constitute ground under S.11(4) iii.
In an application for eviction on the ground that at the time of letting itself the tenant had in his possession a building reasonably sufficient for his requirement, the sufficiency of that building has to be considered with reference to the nature and size of the tenant’s business at the time of letting and not at the time of application. But the position may be different in the case of a subsequent acquisition by tenant.
Landlord pleading that tenant has acquired another building and he is conducting the business which he was conducting in the petition schedule building. Pleadings raised by landlord sufficient to constitute eviction.
Unless it is shown that one of the co-owners is put in possession exclusively by any arrangement between co-owners, it cannot be said that one of the co-owners is in exclusive possession within the meaning of S. 11 (4) iii. Acquisition of plot for construction of building will not constitute a ground under S.11(4) iii. Even commencement of construction is not sufficient. Acquisition of a building by partnership in which the tenant is a partner will not be a ground for eviction under section 11 (4) iii.

3. Building acquired by one of the legal Representatives
Building acquired by one of the Legal Representatives can be a ground for eviction, if the building is acquired in relation to the occupation of the tenanted premises. On the other hand, if one of the Legal Representatives acquired building for their own benefit with their own funds, the court could deny relief under section 11(4) iii. The burden of proof would be on the tenants to establish that the buildings acquired by one or some of the Legal Representatives alone and that they have no connection or right in the business being conducted in the tenanted premises or that they do not occupy the tenanted premises.
Acquisition of buildings by one of the co – tenants, cannot entail eviction of common tenancy.
4. Reasonably sufficient for his requirement
If the premises from which eviction is sought is used not only for residence but also for profession with the consent of landlord, tenancy cannot be terminated on the ground that the tenant has acquired a building suitable for residence, but not suitable for his profession.
If the tenant acquired a building or is in possession of another building suitable for his business he is liable to be evicted. The tenant had leased out his newly put up building is not a defense against landlords claim under S.11(4)iii because he is not in possession of the newly put up building. Merely because the building the tenant has got is having lesser area than the petition schedule building, petition under Section 11 (4) iii cannot be rejected. If it is shown that the tenant has got another building, burden shifts on him to prove that he building is not sufficient for his purpose.
The expression “reasonably sufficient for his requirement” is of relative amplitude and its application differs from case to case. The word “reasonable” is not capable of precise definition. ‘Reasonable’ signifies “in accordance with reasons” and in the ultimate analysis it is a question of fact. Sufficiency of one’s requirement cannot be tested merely on the assertion of the tenant that such and such are his requirements. No straightjacket formula can be evolved for the purpose, nor could a yardstick be provided to measure reasonable sufficiency of one’s requirements. Newly acquired building by tenant if reasonably sufficient for his requirement would attract S.11(4)iii.

5. In the same city town or village
The building acquired by the tenant must be in the same city town or village. The building need not be in the same locality, locality being in the near vicinity. Unlike suitable building available in the locality under section 11 (3) second proviso here building reasonably sufficient for the requirement in the same city town or village is sufficient. Suitable building available in the locality and tenant acquired building reasonably sufficient for his requirements are deferent.

6. Tenant transferring the building during the pendency of the proceedings
During the pendency of an application for eviction tenant gave up possession of a building which is reasonably sufficient for his (tenant’s) requirement in the same town. Landlord’s claim for eviction under Section 11-(4) iii cannot be defeated by this subsequent conduct of the tenant and cannot claim protection of the second proviso of Section 11 (3).
Subsequent event can be taken into consideration but where such fact is created by act of one party by which he cannot defeat a right of the other party. If the building subsequently acquired by the tenant was in existence as on the date of eviction petition, he is liable to be evicted. A party by his own act cannot defeat a right already accrued in favour of the party who seeks eviction by disposing off the building acquired by him he cannot defeat the landlord who seek eviction under section 11(4) iii.
If the tenants transfer the building that was in their possession and ownership six months prior to the disposal of the application, the same cannot negative the ground under Section 11 (4) (iii) of the Act. the subsequent event that can be taken note of normally cannot be an event or an action engineered by the tenants themselves and which has got an impact on the ground alleged in the application.
Building owned by the tenant sold during the pendency of petition, the tenant cannot by his own act defeat the right already accrued on the landlord.
Eviction ordered on the ground that tenant owned another building. Tenant’s building acquired after order of eviction. Event of acquisition of buildings by the Government 21 years after the tenant had entailed liability to be evicted under S.11(4)(iii) will not result in eclipsing the valuable right accrued in favour of the landlord for evicting the tenant on that ground.

Reducing value or utility of the building

11 (4) (ii) if the tenant uses the building in such a manner as to destroy or reduce its value or utility materially and permanently; or

1. Object
The legislature is very conscious about the protection of valuable rights of the landlord to keep his leased out premises intact. The principal behind the sub section is that no limited estate holder is entitled to commit any waste in the premises. The principles of equity deal with what is waste and what is not a waste. In order to satisfy the ingredients of waste; the act done by the person with limited estate should either (1) diminish the value of the property or (2) increase the burden on the property or (3) impair the evidence of title. But ameliorating wastes does not include the acts mentioned in the above subsection. But the subsection does not prevent the tenant from changing the building in such a manner enabling him to use the building for his business unless such change does not involve material alternation of permanent character (A detailed discussion of these aspects has been made under Section 17 of this Act). But the Act does not define the word ‘material alteration’.

2. Destroy or reduce value or utility

In order to attract the conditions of this provision the act of the tenant must either destroy the value or utility of the building, materially and permanently, or reduce the value or utility of the building materially and permanently. The intention of the legislature is very clear, and the tenant need not be given a chance for curing his faults. Or else the section would contain provision for giving notice as provided in Section 11 (2) and 11 (4) (i) of this Act. Value means worth and utility means the condition of being useful or profitable. So any act done by a tenant which affects the usefulness or profitability of a building, adversely, would attract this ground. While deciding whether there is any reduction in the utility, the court has to look into the nature, age, and condition of the building at the time of lease and at the time of petition. Further it has to be ascertained that whether the reduction or destruction is the result of act of tenant. The awareness of the landlord at the time of letting out, about the nature of business and consequences thereof, does not absolve the tenant from use the building in such a manner destroying or reducing the utility of the building. Again this section does not enable the tenant to do acts, which increase the value or utility of the building, if such acts will affect the title of the landlord. The words destroy or reduce is connected to both value and utility with same force and includes the value for clarity of the title of the landlord also.
The act of the tenant amounting either to reduce or destroy either value or utility will attract this provision. The value or utility is disjunctive reduction or destruction of either of it will constitute a ground for eviction if such reduction or destruction is material and permanent. Material and permanent are used in conjunctive manner hence reduction or destruction must be material and permanent, both the character is to be present, for such reduction or destruction in order to constitute the ground.
Two rooms made into one by demolishing a wall, without the consent of landlord. The tenant has no right to demolish the wall and to say that thereby the value and utility are increased. Landlord had designed and built the rooms by spending money and materials to suit his need and utility. Besides, by demolishing the wall in between the rooms, the structural strength of the building is reduced. The landlord is entitled to order of eviction.

The sheds which were recently constructed were of a permanent nature, which could not be dismantled without substantial damage to the structure and, in any event, by making the construction of the sheds in question the petitioner had committed acts likely to impair materially the value and utility of the premises and the land leased out to him.

3. Materially and permanently
The court has to look whether the act of the tenant has resulted in destruction or reduction of value or utility of the building. If the answer is positive then the court has to look into whether such destruction or reduction is material to the building and even if it is material the court has to verify whether such material reduction of value or utility is of permanent nature, if all the test is positive the court has to order eviction under this ground.
Tenant demolishing boundary wall of the property demised and put up corridor to connect his shop building with the godown in adjoining property of another landlord. Due to this the boundary line has been completely obliterated leading to complications, tenant is liable to be evicted. The tenant remodeling the building by changing shutters, doors and flooring amounts to waste.
A user of the lease property as a person of ordinary prudence is a right of the tenant. The action of the tenant replacing wooden split shutters with rolling shutters for safety cannot be said to be material alteration. Tenant constructed a wooden balcony in the showroom. The court held that it did not amount to material alternation.
The destruction or damage has to be adjudicated from the standpoint of the landlord. The word material and permanent are not disjunctive.
Destruction of compound wall and removal of gate affect the security and identity of the property. Demolition of wall in front of the building obstructing the view will not fall within the mischief of S. 11 (4) ii. But the landlord can sue for damages. Landlord cannot get an order of eviction on mere proof of minor destruction or alteration even if it results in marginal reduction of value or utility. Minor alterations that has not resulted in diminishing the value and utility of the building materially and permanently, even if made, is no ground for eviction. The wooden planks on the front door of the building were replaced by rolling shutters. The alteration did not cause any damage or deterioration to the building.
As observed in Shanmugan v. Rao Saheb 1988 (1) KLT 86, Landlord cannot get an order of eviction on the ground of material & permanent reduction of value or utility merely on the proof of minor destruction or alterations, even if it resulted in reduction of value or utility.
The fact that the tenant did not care to protect the furniture in the building does not enable the landlord to complain the building has been used in such a manner as to destroy or reduce its value or utility permanently and substantially. Tenant repaired existing bathrooms and cement plastering was made. It will not amount to any material alteration resulting in reducing in value and utility of the building. And landlord is not entitled for eviction. Minor alterations which will not diminish the value of the building and which is not a permanent character, cannot be said to be alterations which would affect the worth or utility of the building.
The destruction or reduction of utility or value of the building must be of a reasonably substantial magnitude. Since the expressions “materially and permanently” are used conjunctively, the Legislature has indicated that even material alterations of a temporary nature would not help the landlord in getting an order of eviction.

4. Facts to be considered
User of land well and structures appurtenant to the main building in such a manner as to reduce its value and utility materially and permanently attracts S. 11 (4) ii. Additional construction on land appurtenant to the building reduces the value and utility of the building materially and permanently.
The impairment of the value or utility of the building is to be considered in the point of view of the landlord. If there is a stipulation in the lease deed that the tenant shall not make any additional construction or alteration to the tenanted building, it is binding on the tenant.

The tenant reconstructed the building by replacing tiled roof by asbestos and shutters were placed instead of doors, older walls were replaced by new walls in such a way as to enhance its utility but against the consent and will of the landlord. The ingredients of section 11 (4)ii are satisfied and hence the tenants are liable to be evicted.

5. Defenses
The tenant can take the defense that the building does not belong to the petitioner and thus deny the title of the landlord. The landlord has to go to the Civil Court and there too the tenant gets all the protection of the Rent Control Act. The landlord has to prove the ground under this act in the civil court also, the tenant is not deprived any of his right by denying the title of the landlord.
The petition on the ground of reducing value or utility of the building materially and permanently can be defended that the work done does not reduce value materially and permanently. Reduction of value should be material as well as permanent. Both the limbs, material and permanent nature, must be present in order to constitute the ground. Likewise the reduction of utility should be material as well as permanent. Both the limbs, material and permanent nature, must be present in order to constitute the ground. And further plead that the work done has only enhanced the value or utility.
The conduct of tenant in the proceedings cannot be taken against him when deciding the case on merit. Any of the ground under this Act is to be proved to evict the tenant. Order must be in terms of the provisions of the Act.

Subletting

11 (4) i if the tenant after the commencement of this Act, without the consent of the landlord, transfers his right under the lease or sub-lets the entire building or any portion thereof if the lease does not confer on him any right to do so:

Explanation: – where on the partition of a joint family or of the rights of co-tenants or on the dissolution of a firm, the right of the joint family or the co-tenants or the firm under a lease is vested in a member of the joint family, or a co-tenant or a partner, as the case may be, whether by act of parties or otherwise, no transfer by the tenant of his right under the lease shall be deemed to have taken place within the meaning of this clause; or

Provided that an application under this clause shall not be made for the first time in respect of one and the same tenancy unless the landlord has sent a registered notice to the tenant intimating the contravention of the said condition of the lease and the tenant has failed to terminate the transfer or the sublease as the case may be, within thirty days of the receipt of the notice or the refusal thereof.

1. Object

Though section 4 (2) of the Act 2 of 1965 provides for an implied termination of tenancy in case of subletting, that provision provides only for giving notice of vacancy before the accommodation controller. But the subsection 4 (i) of section 11 provides the ground for eviction. Section 11 (2) and section 11 (4) i has some resemblance in the prerequisites, the registered notice is mandatory for both these grounds. According to the provision of the T.P. Act the sub lease should be specifically barred at the time of leasing. But Act 2 of 1965 provides a bar to the tenant not to sublease unless the landlord grants consent. Kerala Buildings (Lease and Rent Control) Act is a self contained legislation and it is wholly unnecessary to go outside the statute and determine whether the tenant is liable to be evicted or not under the Transfer of Property Act.

2. Scope
Subletting the whole or part of the building or assignment of tenancy right without express permission of the landlord is a ground for eviction. Once the landlord proves subletting or parting with possession or assignment to the satisfaction of the court, the landlord is as of right entitled to get an order of eviction, he need not have to establish further that his claim for eviction is bonafide. The rent control act is a complete code in itself Transfer of Property Act section 108 (j) is no defense to an action for eviction on the ground of subletting. Act contemplates eviction in situations where the tenant unauthorisedly transfers his right under the lease without the landlord’s consent even when the transfer does not amount to subletting.

3. Sub letting.
The Rent Act does not prohibit tenant to permit use of the premises so long as tenant remains in possession of the rented premises. Such permission to others to use premises does not amount to sub-letting. A room in a Hotel or boarding house has been taken out of the definition of Building. Therefore, a room in a Hotel given in possession to the lodger does not amount to sub-letting.
Even if the lease deed confers power on the lessee to sublet, a Rent Control petition could be maintained against the lessee and sub-lessee on any of the grounds other than S. 11 (4) i . Even if the lease confers tenant right to sublet, that right is available only during the contractual tenancy, ie. within the lease period. Thereafter when the statuary tenancy beings the tenant will not get the benefit of the contract, During the statutory tenancy period the tenant has got the rights conferred by the statute and not the contract.
No period of Limitation is prescribed for filing Rent Control Petition on the ground of sub-letting. Subletting do not create any new right on the Tenant against landlord on the other hand he loses his protection of The Kerala Buildings (Lease and Rent Control) Act 1965. In the event of losing such protection he should definitely suffer the consequences as provided in S. 11 (4) i.
The right to seek an order of eviction is available to the landlord Under section 11 (4) i from the date of commencement of Rent control petition, and not from the date on which the Act was made applicable to the area.

The Subletting taken place before the Rent Control Act take into effect. Subletting must necessarily be after Kerala buildings (Lease and Rent Control) Act 1965. The petition is not sustainable as per the clear wordings of S.11 (4) i.
Even if the subletting is only a portion of the building the landlord gets the right to evict the tenant from the whole building let to him. Exclusive possession of, at least of a portion of the building has been transferred by the tenant to the alleged sub tenant and that the tenant has miserably failed in establishing that the jural relationship between him and the alleged sub tenant is that of employer and employee, will result in an order of eviction from the whole building. Unless tenant adduces cogent evidence that the jural relationship between the tenant and the alleged sub-leasee is that of employer and employee, the ground of sublease under section 11 (4) i will be made out. Creation of single tenancy for two rooms of which one was sublet can result in eviction whole tenancy.

As the finding of the sub-letting is a finding of fact, the High Court is bound by the same.

4. Legal Heirs and subletting
A fresh tenancy was created on the death of the tenant in favour of one son with consent of other heirs. If another son is occupying the premises it amounts to subletting.

5. Partnership and subletting
A tenancy right derived out of partition of a partnership will not constitute subletting. The explanation to the section clearly excludes such tenancies from the mischief of subletting. Existence of partnership between tenant and subtenant is a good defense, the burden of proof is on the tenant. The tenant should prove the sharing of profit of the business, mere production of partnership deed is not enough.
Sublessee contended partnership with original tenant and produced registered partnership deed and sales tax registration. Original tenant remained ex parte to proceedings. No pleading or any evidence to show that there was any sharing of profits. So partnership deed found to be a camouflage created to circumvent the provisions contained in S.11(4)(i).
Partnership deed is relied on to contend that the jural relationship between the tenant and the alleged sub lessee is that of partners. Very nominal percentage of the capital which is contributed by the tenant and tenant’s share in the profits is also very nominal. The alleged sub lessee is the Managing Partner. The tenant is not given any part in the management of the affairs of the firm’s business which is to be conducted in the schedule building. The tenant was if at all only a dormant / sleeping partner. The physical possession of the building as well as the right to conduct of business therein was with The Managing Partner and that despite the partnership deed the tenant was not actually taking part in the business at all and that the very execution of partnership deed was to cover up the real arrangement between the parties. The finding is that the tenant does not carry on business at all and that the partnership itself is a camouflage of covering up the sublease.

On dissolution of the partnership firm all the rights of the tenant firm including tenancy rights had been transferred to one of the partners who continued in occupation. This does not amount to sub letting of the premises. Transfer of the tenancy in favour of a partnership firm of which the tenant is a partner does not amount to subletting. If on the reconstruction of partnership none of the original tenant or their legal heirs remains as a partner, the remaining partners would assume the status of a sub-lessee. The receipt of rent cannot be put against the landlord.
Unauthorised transfer of right of the tenant includes subletting. Where the rented premises let out to a tenant is placed in exclusive possession of another person with an attempt to camouflage the subletting, by an agreement of an ‘agency’. It was held that exclusive possession with full control clearly amount to sub-letting and the agreement of agency cannot hide the real transaction. Tenant entering into an agreement with a third party, allowing him to take possession of the entire premises, giving full power of control and management over the leased property. It is only a camouflage to suppress the fact of sub-letting the property.
Recital in the rent deed indicated that lease was in favour of a firm. Rent was paid on behalf of the firm. The Partner who had signed the rent deed retired and firm continued by other partners. There was no subletting.
The fact that Local authorities license for trade is in the name of original tenant cannot rule out the possibility of another person in possession. Similarly failure to supply the name of the sub lessee and failure to impugn partnership deed as a sham document by amending the pleadings also cannot be fatal to the landlord.
It is well settled that if the tenant forms a partnership and carries on his business, there is no exclusive transfer of possession. But if the partnership is sham and real purpose is subletting, the disguised partnership deed is not to be looked into. In such case there is no genuine partnership despite legal devices to camouflage the subletting. When tenant parts with exclusive possession of business premises to stranger other than close blood relation, in the absence of contrary evidence passing of consideration can be presumed. The payment of consideration is personal to the tenant and the sub-tenant ant it is not possible to prove it by direct evidence and, thus, an inference can be drawn that the passing of possession to the sub-tenant by the tenant is for consideration. The landlord does not have to prove that the transfer is for valuable consideration, there is a presumption of consideration under section 114(f) of the Indian Evidence Act against the tenant. When the transfer is made to a close relative, consideration need not be proved at all and in such case only the transfer of exclusive possession needs only be proved.
The law of partnership applied only to the partnership and not to the landlord-tenant relationship. The tenant cannot violate any of the provisions of the Rent Control Act on the basis of the partnership agreement with the third parties. So far as the right of the landlord seeking eviction is concerned, the main question will be whether there are any grounds under the Rent Control Act entitling the landlord to get eviction.
Tenant formed partnership – tenant died – business by other partner amount to sub-lease. The evidence does not disclose that the landlord had accepted the partnership arrangement. The entire affairs of the firm and the management were looked after by the tenant during his life time. There was no transfer of possession of the tenancy in favour of another while the tenant himself was a partner. When the tenant ceases to exist, the tenancy right was taken over by the respondent, which is a transfer from the original tenant as far as the landlord is concerned. This change of possession falls within the mischief of the provisions of the Act. Existence of partnership between the tenant and the subtenant is a valid defense to the plea of subletting. Creation of partnership is not subletting but when the original tenant dies the other parties cannot continue in the building because the partnership is not the tenant. where the original tenant parted away with legal possession by inducting a firm of which the original tenant is not even a partner and such parting away with the possession was without the knowledge and consent and much less the written permission from the landlords.
The sub tenant claims that he is in possession of the building on the basis of a partnership. Effect of an unregistered partnership and matters to be considered by the court is discussed. The Rent Control Courts should be slow to place reliance on partnership which are not registered in accordance with provisions of the Partnership Act even when they are setup in defense.
Persons who were original tenants of the landlord and who were in possession of the premises have entered into a transaction evidenced by Ext. B1, with petitioners 2 to 8 and a new partnership has come into existence. The property, which was in possession of the original tenants, thus continues in possession of all the partners of the new partnership firm, which includes the original tenants as well. Such a transaction does not bring about sub-lease to enable the landlord to seek eviction invoking S.11 (4) (i).
If the original tenant converts the business into a limited company or into a partnership retaining control, it does not amount to subletting or transfer. However, if he retires or severs his connection with the partnership the same amounts to subletting.
Building let out to a Co-operative society. The society merged with another society and transferred all assets including the building to the latter society tantamount to sublease.
The landlady was not aware of the partnership formed by the original tenant. Even after the death of the original tenant she had no reason to suspect that the revision petitioners who are some of the sons of the original tenant were paying the rent in their capacity as partners of a firm. She came to know of the partnership only on receipt of Ext. A-2 reply notice. If may also be noticed that Ext. A-2, the stand taken by the revision petitioners was that there was subsequent lease in favour of the firm. The revision petitioners failed to prove that allegation. Therefore, the contention that the landlady accepted the revision petitioners as her tenant, is without any merit.
If the purpose of such partnership may ostensibly be to carry on the business in partnership but the real purpose was subletting of the premises to such a person who is ostensibly a partner then the same would be deemed to be an act of subletting coming within the mischief of S.11(4)(1).

6. Pre-requisites for eviction under section 11 (4) i.
The pre-requisites for eviction under subletting are 1) there must be subletting without the consent of the landlord. 2) Registered Notice to the tenant if the suit for subletting is for the first time in respect of one and the same tenancy and the sub tenancy was not removed within 30 days. In the case of repeated act of subletting the notice need not be repeated for every occurrence.
To prove subletting two ingredients are necessary to be proved, (i) exclusive possession of the sub-tenant (ii) valuable consideration by the sub-tenant to the head tenant. The ingredients of unauthorized subletting and transfer of tenant’s rights under the lease necessary under section 11 (4) i are in the alternative and not cumulative. The landlord needs only to prove any one of them. The landlord need not prove positively that the transfer is for valuable consideration. Considering the fact that payment of rent by a sub-tenant to the tenant is always a secret arrangement between them, proving the fact by documentary evidence should not be insisted.
Even if there is no express prohibition in lease deed regarding subletting, the landlord can seek eviction on the ground of subletting.

The landlord needs only to show that the sub-lessee is in possession on the date of petition. If the tenant fails to terminate the sublease within the statutory period, the ground of subletting arises. The fact that there was delay in filing the Rent Control petition is of no consequence. Expression ‘to terminate the transfer or the sub lease’ used in the proviso to S.11(4)(i) means full and effectual termination of sub-lease or transfer in the sense that the alleged sub lessee or transferee is sent away from the building.

Subletting for more than one year through a non registered instrument is a valid ground for eviction but the alleged subletting should continue till the petition date.
For getting eviction on the ground of sub-letting the landlord has to prove that in between the tenant and the sub-Tenant there is a relationship of lessee and lessor and the possession of the premise was parted with exclusively by the tenant in favour of the sub tenant. The landlord is expected only to establish the presence of sub-lessee in the premises with whom landlord has no jural relationship. Burden is entirely on the tenant to establish the jural relationship between him and the sub-lessee. And when a person other than the tenant is found to be in the building, the burden is on the tenant to show there is no sub-lease or transfer of possession. In order to prove a sub-lease there must be transfer of an exclusive right to enjoy the property and there must be parting of legal possession. Transfer of exclusive possession is prima facie evidence of tenancy although circumstances may be established which negative the intention to create a lease. Once the landlord has established that a person other than the tenant is in occupation of the premises burden shifts to the tenant to prove the relationship of tenant and the person occupying the building and rebut the presumption of sub lease. A person who is inducted as a sub-tenant without the consent of the landlord need not be made a party in ejectment suit filed against the tenant, but, if the alleged sub-lessee claims some independent right, those can be agitated in separate proceedings. Or he can challenge the decree as fraudulently passed and obtained in fraud of his rights.
A legatee under a testamentary disposition cannot claim the status of a statutory tenant and resist the claim of eviction for subletting unless the legatees are natural heirs.

7. Partial subletting
Partial subletting is a ground for eviction. Even if the original tenant retains some portions with him and under his exclusive possession the tenant and the subtenant can be evicted from the whole building.

8. Notice
“Provided that an application under this clause shall not be made for the first time in respect of one and the same tenancy unless the landlord has sent a registered notice to the tenant intimating the contravention of the said condition of the lease and the tenant has failed to terminate the transfer or the sublease as the case may be, within thirty days of the receipt of the notice or the refusal thereof.”

A registered notice is made mandatory to constitute the ground of subletting. This notice is required only for the first instance of sublease. This mandatory condition is incorporated in the form of a proviso. Hence without the notice ground of subletting does not arise. The landlord must send a registered notice to the tenant stating the contravention of the condition of the lease and must give 30 days’ time to the tenant to terminate the transfer or sub-lease; if within 30 days the sub lease is not terminated the landlord can file an application before the Rent Control Court to evict the tenant.

Even though the Statute refers to actual service or refusal only, if there is evidence to hold that a subletting tenant has deliberately evaded receiving the statutory notice, then also the same will amount to refusal of the notice, satisfying the requirements of the proviso.

Appellate Court found that the sublease was after service of notice. Even then eviction is possible. If the sub tenancy has been terminated within 30 days period after the receipt of the registered notice from the landlord intimating about the objectionable sub-lease, the landlord cannot initiate any proceeding for the eviction of the tenant.

Mere plea that the registered notice as contemplated under the proviso to S. 11 (4) i has not been issued, that itself is not a ground to non-suit the landlord. Especially when all the ingredients provided in the proviso has been satisfied.
Landlord send a registered notice to the tenant intimating the contravention of the condition of lease but the notice returned with the endorsement “Addressee out of India” landlord also send a copy to the sub lessee who received it. Landlord’s responsibility cannot be equated with the responsibility of serving notice under Order V of CPC. Petition under S. 11(4) i cannot be rejected on the ground that the tenant has not received the notice. Notice sent prior to subletting is sufficient. Omission of sub-lessee’s name in the notice would not render the notice defective or invalid. Failure of advocate to sign notice intimating subletting will not render the application for eviction non maintainable. The tenant is not prejudiced by such neglect.
Notice issued to one of the joint tenants is sufficient to maintain an application under S.11 (2) b (arrears) and also under S. 11 (4) i (subletting). Heirs are joint tenants. Notice to one of the joint tenant is sufficient and the petition maintainable.
The sublease or unauthorised transfer subsisted at the time of trial. The tenant having not terminated the sublease or unauthorised transfer within the period of thirty days of receiving the notice cannot avoid the inevitable order of eviction by offering to terminate or by actually terminating the sublease or unauthorised transfer thereafter.
The fact that the suits were instituted by the tenant for ejecting the sub lessee, whether it be on the strength of a mandatory injunction decree or a decree for recovery of possession, will show that the alleged sub lessee was having possession and absolute physical control of the schedule premises.

9. Partition of joint family and dissolution of firm

Explanation: – where on the partition of a joint family or of the rights of co-tenants or on the dissolution of a firm, the right of the joint family or the co-tenants or the firm under a lease is vested in a member of the joint family, or a co-tenant or a partner, as the case may be, whether by act of parties or otherwise, no transfer by the tenant of his right under the lease shall be deemed to have taken place within the meaning of this clause; or

There is an explanation for this clause. The explanation provides protection to the tenant who’s right is derived from the partition of a joint family or on dissolution of a firm provided he was a member of the joint family or partner in the partnership. Then no transfer by the tenant of his right shall be deemed to have taken place within the meaning of this section.

10. Consent
Acceptance of rent from sub-tenant does not estop the landlord from claiming eviction on the ground of sub-letting. Acceptance of rent by the landlord from the sub lessee is not a ground to hold that the landlord has recognized the sub lessee as the tenant. Issuance of rent receipt by the landlord would not defeat the right of the landlord in seeking eviction under the Rent control Act. There is no question of waiver of estoppel or acquiescence. Mere knowledge or inaction or even the receipt of rent by the landlord even after somebody else is let into the building, will not deprive the landlord of his right to evict the tenant under S.11(4)(i). Contention that original tenant had surrendered the lease and later the landlord had created oral lease in favour of revision petitioner, in the absence of evidence to prove scuh facts, the plea is untenable.

Neither a new tenancy or a valid sub tenancy in favour of the subteannt has been created on Acceptance of rent from the subtenant. Landlord is not estopped from seeking eviction on ground of unauthorised sub letting on the ground that he had accepted rent from the subtenant. Consent contemplated by S.11(4) i of the Act is a consent to the subletting before the subletting and mere knowledge, inaction or receipt of rent by the landlord even after somebody else is let into the building would not lead to the loss of the right of the landlord. Inaction on the part of the landlord would not be sufficient to amount to implied consent to sub-let. Inaction in every case does not necessarily lead to an inference of implied consent or acquiescence. The inaction of the landlord will not amount to acquiescence, there is no implied consent even if the landlord know about the subletting.
Prior consent to the subletting is a must Mere inaction for some time by the Land Lord would not disable landlord from seeking eviction. If the landlord has given consent to a particular subletting it will not entitle the tenant to sublet the premises on subsequent occasions without the consent of the landlord.

The consent of the landlord is to be with some positive action so that the tenant can be said to have had the authority to sub-lease his lease rights. A consent letter issued by the landlord after the lease, does not entitle the tenant to sublet the building. Consent contemplated under S.11(4)(i) of the Act is a consent to subletting before the subletting. Mere knowledge or inaction or even the receipt of rent by the landlord even after somebody else is let into the building, will not deprive the landlord of his right to evict the tenant under S.11(4)(i).
Continuance of the landlord as a partner in the sub lessee firm amounts to a positive act of consent to sublease the premises.
Silence of the landlord cannot be considered as consent for subletting within the meaning of S.11(4) i There is also evidence to show that the original tenant was tyrannical & the landlords were afraid of him. In that situation were silence or failure to raise prompt objection to the subletting cannot lead to the conclusion that the landlords have waived their right.
The contractual tenancy provided for subletting. But subletting after the termination of the contractual tenancy and after commencement of the Rent Act without the written consent of the landlord will be a ground for eviction. The consent given by the landlord originally will not be available after the expiry of the period of contractual tenancy.
Assigner landlord issued a notice calling upon the tenant to abate the sub tenancy but it was not followed by a petition. The objectionable subletting does not become an authorised subletting by this process. The right to apply for eviction will continue so long as the subletting continues. And Art. 137 of the Limitation Act 1963 is not applicable to rent control proceedings before the rent controller.
It is clearly provided under the proviso that if the application for eviction under S.11(4)(i) is to be filed for a second time by a landlord against his tenant, the statutory intimation notice under the proviso to S.11(4)(i) is not necessary. The landlord can file petition under this section anytime after the notice. Even after a long period no further notice is necessary.

11. Exclusive possession

When it is shown that a person other than the original tenant is in exclusive possession, the burden is on the tenant to disprove the prima facie case of subletting established by the landlord. Burden of proof is not on the Landlord to prove that the lessee has parted with legal possession. The difference between sublease and assignment is analysed in this case. Inference of sub-letting cannot be assumed by the mere fact that someone other than the tenant is in possession of the building.
When the possession of the building is with a third person, it is the tenant to establish that the nature of subletting is only a licence to possess. If the enquiry reveals that the arrangement though styled as licence is one intended as a camouflage for an arrangement of sublease or transfer of possession then order of eviction will follow. When it is seen that somebody other than the tenant is in possession of that portion, it is for the tenant to explain and establish by cogent evidence as to what is the jural relationship between him and the person in possession of that portion.

There must be a transfer of the legal possession and exclusive right to enjoy the premises, and some amount has been collected by way of rent or compensation.
License or lease the classic test is the test of exclusive possession. If the alleged transfer to subtenant is only license eviction will not be ordered. But if the enquiry reveals that the arrangement though styled as license is one intended as a camouflage for an arrangement of sublease or transfer of possession order of eviction will follow.
The burden of proof cast on the landlord is only a prima facie one. The burden shifts to the tenant to prove the nature of relationship with the alleged sub-tenant when the building is in exclusive possession of another. The landlord needs only to prove the transfer of exclusive possession of the premise for valuable consideration. The burden of proof thereafter is on the tenant to rebut that evidence. The prima face proof of sub lease or transfer can be in the form of oral evidence of the landlord himself or by persons who are aware of those facts. The court has to assess that evidence along with any document which the landlord is able to produce. If the landlord proves that the subtenant is in exclusive possession of the tenanted premises then the onus is shifted to the tenant to prove that it was not a case of subletting.
Parting of possession of rented property by tenant to a third party and receiving monitory consideration could establish subletting. The burden of proof is on the landlord and the same will shift to the tenant if the landlord establishes that the tenant has parted the possession. Relationship between the tenant and subtenant is not material for deciding the question of sub-tenancy. The landlord need to prove positively by adducing evidence that transfer of possession was for valuable consideration. Only when it is impossible to draw a presumption under S.114(f) of Evidence Act need it be proved.
Mere knowledge of landlord about the exclusive possession by the sub-lessee does not draw presumption that landlord had given permission and there is no acquiescence by the landlord. On establishing that the tenant has transferred exclusive possession to another person the court can draw a presumption under section 114 of Evidence Act that the transfer was for a valuable consideration, so as to shift the burden of proof to the tenant to disprove the prima face case of the landlord. If the landlord has to prove subletting by adducing evidence that the transfer for valuable consideration. It may not be possible to prove subletting in any case except rarest of rare case.
The tenant transferring the tenanted premises to his brother amounts to subletting. Landlord need not prove positively adducing evidence that transfer was for valuable consideration need to be proved only in cases where it may not be possible to draw the presumption under section 114(b) of the evidence Act.
Sub tenancy or a sub letting comes into existence when the tenant inducts a third party / stranger into the tenanted accommodation and parts with possession thereof wholly or in part in favour of such third party and puts him in exclusive possession thereof.

12. Defenses
To effectively defend a petition for sub-letting make a partnership deed (not Limited liability partnership as LLP is a separate entity and will constitute subletting) with the original tenant or power of attorney from the original tenant. Denial of title can also be effectively applied to defend this ground.
The conduct of tenant in the proceedings cannot be taken against him when deciding the case on merit. Any of the ground under this Act is to be proved to evict the tenant. Order must be in terms of the provisions of the Act. The tenant can make use of all the delaying tactics without any fear of passing an eviction order against him.
13. Section 11 (4) i and 11 (10)

Once the landlord proves subletting, he is entitled as of right to get eviction. He need not further establish under subsection (10) of section 11 that his claim is bona fide.

Granting of time for payment of Rent

                           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                        PRESENT:

               THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
                                                               &
                               THE HON’BLE MR. JUSTICE B.KEMAL PASHA

                   TUESDAY, THE 29TH DAY OF JANUARY 2013/9TH MAGHA 1934

                                              RCRev..No. 362 of 2012 ()
                                            —————————————
     AGAINST THE ORDER/JUDGMENT IN RCA.29/2010 of RENT CONTROL APPELLATE
  AUTHORITY (II ND ADDL. DISTRICT JUDGE’S COURT. KOZHIKODE) DATED 29-09-2011
                                                               IN
 RCP.49/2009 of THE RENT CONTROL COURTADDL.M.C.,KOZHIKODE-I DATED 13-01-2010

REVISION PETITIONER/APPELLANT/RESPONDENT:
————————————————————————–

            K.ACHUTHANUNNI,
            S/O.SIVASANKARAN NAIR, KOLATHOTTU HOUSE,
            VALAYANAD AMSOM DESOM, VALAYANAD.P.O, KOZHIKODE.

            BY ADVS.SRI.V.G.ARUN
                          SRI.T.R.HARIKUMAR

RESPONDENT(S)/RESPONDENT/PETITIONER:
—————————————————————–

            AL UTHYBA INFOTECH,
            REPRESENTED BY ITS MANAGING PARTNER, C.ABDURAHIMAN,
            AGED 57 YEARS, S/O.ABOOBACKER MUSALIYAR,
            NEAR COURT ROAD, NAGARAM AMSOM AND DESOM
            KOZHIKODE TALUK-673 001.

            R BY ADVS. SRI.K.M.FIROZ
                              SMT.M.SHAJNA

            THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON
            29-01-2013, ALONG WITH RCR. 363/2012, THE COURT ON THE SAME DAY
            PASSED THE FOLLOWING:

DG

                 THOTTATHIL B.RADHAKRISHNAN
                           & B.KEMAL PASHA, JJ.
         …………………………………………………………..
                    R.C.R.Nos.362 & 363 of 2012
         …………………………………………………………..
            Dated this the 29th day of January, 2013.

                                   O R D E R

Thottathil B.Radhakrishnan, J.

     These revisions by the tenants are only on the ground of

eviction under Section 11(2)(b) of Act 2 of 1965. Existence of

arrears of rent stood conceded by the tenants even before the

appellate authority. Their ultimate request to the appellate

authority was to order the appeal granting them some time to

make payments invoking sub Section (c) of Section 11(2). This

court has been, apparently, gracious to keep these revisions

here, essentially to give the tenants more time to make the

payments. Though they thus obtained further time until now,

there is serious dispute between the parties as to whether the

entire arrears have been deposited or whether there is

shortage in doing so. We are of the firm view that these are

matters which would be germane for consideration only in an

application under Section 11(2)(c) and this Court need not

R.C.R.Nos.362 & 363 of 2012          2

defer any further, the landlord enjoying the fruits of the order

of eviction, by granting any further time by keeping these

matters at this end.

      2.     For the aforesaid reasons these revisions are

dismissed         without      prejudice      to    the   revision

petitioner’s/tenant’s invoking Section 11(2)(c) within the

statutory period from today.

                                                  Sd/-
                          (THOTTATHIL B.RADHAKRISHNAN, JUDGE)

                                                  Sd/-
                                           (B.KEMAL PASHA, JUDGE)

                              //True Copy//

                              P.A to Judge
DG

order for retrun of building if not used for self occupation after getting the tenant vacated on the ground of own use

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HON’BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI

THURSDAY, THE 31ST DAY OF JANUARY 2013/11TH MAGHA 1934

RCRev..No. 46 of 2013 ()
————————

AGAINST JUDGMENT IN RCA.24/2011 IN THE COURT OF RENT CONTROL APPELLATE
AUTHORITY,KOTTAYAM

AGAINST THE ORDER IN R.C.(O.P.) NO.6/2010 IN THE COURT OF THE RENT CONTROLLER,
ETTUMANOOR
——————————————–

REVISION PETITIONER(S) :
————————————

GOPALAKRISHNAN ACHARI,
S/O VELAYUDHAN ACHARI,AGED 60 YEARS,
RESIDING AT MADAPRAYIL HOUSE,
KIZHAKKUMBHAGAM KARA, ETTUMANOOR P.O.,
ETTUMANOOR VILLAGE, KOTTYAM.

BY ADV. SRI.B.PRAMOD

RESPONDENT(S):
————————

J.SANTHAKUMARI AMMA,
W/O MOHANAN NAIR, AGED 62 YEARS,
RESIDING AT SREENILAYAM,
KIZHAKKUMBHAGAM KARA, ETTUMANOOR P.O.,
ETTUMANOOR VILLAGE, KOTTAYAM 686012.

THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON
31-01-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

NS

THOTTATHIL B.RADHAKRISHNAN

& A.V.RAMAKRISHNA PILLAI, JJ.

…………………………………………………………..
R.C.R.No. 46 of 2013
…………………………………………………………..
Dated this the 31st day of January, 2013.

O R D E R

Thottathil B.Radhakrishnan, J.

This revision is filed against concurrent decisions dismissing

an application by a tenant under Section 11 (12) of Act 2 of 1965.

2. The landlord applied for an eviction under Sec. 11(3) on

the plea that her son needs the shop room to commence a business

in repairing electronic and electrical gadgets. That was found by

three courts concurrently including this Court in a revision under

Section 20 of the Act. Ultimately, it was argued before this Court in

that revision that since the need for which eviction was sought is

for occupation by the son of the landlady, occupation by any other

person would not be sufficient. This Court held that the said

apprehension is baseless since occupation contemplated under

Sec.11 (12) can only be occupation by the person for whom the

need is projected. This Court made that observation, then, because

it was open to the tenant to make an application under Section 11

(12) if the building is put to any use other than for which the

eviction order was obtained under Section 11(3).

R.C.R.No. 46 of 2013

2

3. The tenant filed the application under Section 11 (12)

pleading that the building is kept vacant. He took out a

commission for local inspection. Rent Control Court required the

Commissioner to collect information from the local people

regarding the question whether the building is put to use. Live

aside the propriety of such a direction to the Commissioner, we find

that the Commissioner came out with the report that while there is

some cobweb and dust in the room, there is a sewing machine,

chairs and other necessary equipments for a tailor and that the

local people had given divergent versions as to whether the

building was put to use or not. The person in occupation, has been

found, concurrently by the courts below, to be the wife of the son of

the landlady. Such occupation has been concurrently held by the

courts below to be occupation by the landlady’s son through his

wife. They are findings on facts on the materials on record. We are

not inclined to take the view that the said finding is perverse,

unreasonable or unavailable on the materials on record, particularly

when, as rightly noted by the courts below, the burden of proof on

an application under Section 11(12) is squarely on the tenant and

that such burden has not been discharged by the revision petitioner

R.C.R.No. 46 of 2013

3

tenant to the satisfaction of the courts below. We, therefore, find

no illegality, irregularity or impropriety in the orders impugned or

with the procedure adopted. This revision, therefore, fails.

In the result, this revision petition is dismissed in limine.

sd/-
(THOTTATHIL B.RADHAKRISHNAN, JUDGE)

sd/-
(A.V.RAMAKRISHNA PILLAI, JUDGE)