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.

What is the use of Judicial System if the justice is not done in the lifetime of a Person

A building owner has filed a rent control petition with No 25/1983 (Rent Control Court, Kottayam) when the building owner was 48 years, the tenant denied the title of the owner and rent control court passed order on 24/10/1991 that as there is dispute of title the civil court only has jurisdiction.

The tenant had tried to do some modification in the building which the Landlord opposed and filed an injunction petition in 1997 in which the court ordered that the tenant can do only painting and whitewashing in the building, and no other work of permanent character can be done by the tenant in the building.

The Building Owner filed OS 200/1992 (Sub Court, Kottayam) and judgment was delivered on 11/6/1999 declaring that the building owner aught to have probated his title deed (his father’s will).

The Building Owner has field appeal with No AS 139/2000 (District Court, Kottayam) and judgment was delivered on 18/7/2003 finding the title of the building owner but remanding the case to the lower court for disposing the suit on any of the grounds mentioned in the rent control Act.

The building owner preferred appeal (FAO 158/2003) (High Court of Kerala, Ernakulam) on that order of remand and the tenant preferred appeal (FAO 136/2005) (High Court of Kerala, Ernakulam) against the finding that the building owners has title.  Common judgment passed on 14/8/2005 confirming the title of the building owner and remanding the case for disposing on any of the ground mentioned in the rent control act with a direction to dispose of the case with in 3 months.

The tenant filed Special Leave Petition Before the Supreme Court of India SLP CC No 1918/2008 ;  SLP No 4837/2008 which was dismissed by the Supreme Court on 15/2/2008

The suit was heard in the lower court (OS 200/1992) (Sub Court, Kottayam) and passed order on 7/7/2011 finding the title of the building owner and finding that the own use claimed by the owner is bonafide.  meanwhile the tenant had gone to the high court in a writ (WP(C) 43/1998 (High Court of Kerala, Ernakulam) which was disposed of on 28/5/2008) claiming that his pleadings has to be amended (which was rejected by the high court).

Against the order of the lower court the tenant preferred an appeal (AS 192/2011) (District Court, Kottayam) mean while the building owner died on 16/5/2012 at the age of 78.

During this 30 years the building owner was shuttling from one court to another and from piller to post with no result.

The irony is that the tenant is occupying the building having 1800 sq. ft. for a meager rent of Rs 125 per month with amounts to Rs. 0.06 per sq. ft.

For this injustice the building owner has filed a Rent control petition for revision of rent (RCOP 34/2011) (Rent Control Court, Kottayam) which was stayed by the Kerala High Court on an order on OP (RC) 2410/2013 (High Court of Kerala, Ernakulam) stating that as there is a unsettled dispute over the title pending in the court as AS 192/2011. OP (RC) 2410/2013 ordered that RCOP 34/2011 can continue pending AS 192/2011.  The High Court of Kerala on 14/08/2013 vacate the stay ordered in OP (RC) 2410/2013 on finding the fact that FAO 158 of 2003 and FAO 136 of 2008 was already ordered finding the title of the petitioner by HON’BLE MR.JUSTICE T.R.RAMACHANDRAN NAIR and HON’BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI. On continuing the trial of RCP 34/2011 the trial court ordered the rent as Rs.10 per square feet in RCOP 34/2011.  The tenant filed RCA 24/2014 and the building owner filled RCA 25/2014 common order enhanced the rent to Rs. 30 per square feet.  The tenant filed RCR 250/2016 and RCR 251/2016 before the High Court of Kerala against the order of the district court. RCR 250/2016 and RCR 251/2016 is ordered on 11/10/2018 by Justice Harilal. The tenants went to Supreme Court of India and filed Special Leave Petition Numbered as SLP (C) 6556 and  6557 of 2019 and is dismissed on 11/3/2019 upholding the order in RCR 250/2016 and RCR 251/2016.

Mean while the landlord had filed petition for arrears of rent RCP 11/2017 which is stayed by the Munciff on the ground that the matter is pending before the High Court. The building Owner filed a OP(RC) 109/2018 before the High court to vacate the order of stay. OPRC 109/2018 ordered in favour of building owner.

AS 192/2011 ordered in favour of the building owner finding the ground of own use.  The tenant filed Regular Second Appeal RSA 1109/2016 before the High Court of Kerala. The same was heard by  Justice Harilal but the order of the judgement not pronounced. Later the case was posted in regular list for further hearing.

From 1983 to 2019 the building owner is shuttling from one court to another.  During these thirty six years the building owner is not getting any remedy for his legal battle in spite of his reverence to the judicial system from the court of law.

The tenant is very affluent and rich.  The tenants are conducting  Kumarakom Hotel, at Kottayam Gandhi Square. Initially taken on rent by Itty Chacko, thereafter his son T. C. Abraham conducted hotel, now his sons T. A. Thampan residing at Flat No. 2A-1, Century Towers Kottayam. Phone No. 9447014797 and worship at Solomon’s Portico and Sunny Abraham alias T.A. Sunny residing at Thyparambil House Kottayam and worship at Abundant Life, Kottayam Phone Number 9496375957 are conducting the case against the landlord in order to grab the property.

T. A. Thampan married Maya Thampan and has Son Joshwin Thampan and works as Chief Strategy Officer at AL Jassar LLC, Muscat, Oman.

T.A. Sunny alias Sunny Abraham married Sherley Sunny and has a daughter Chintu Sunny working at International Modern Hospital, Dubai as Clinical Audiologist and a Son Deepu Sunny who married Lija Mary Jacob and he is Assistant Director at EY (Ernst and Young).

All this happened at Kottayam, Kerala

Is this the type of justice the courts are rendering ?

Is Judiciary a farce ?  A petition before the court if not settled finally and given a remedy within a reasonable time is a waste of time money and effort and make the Judiciary a mockery.

Will a sensible man come to judiciary for getting any remedy for any injustice he has faced ? Is it advisable to seek remedy in a court of law in India ?

The rights of a building Owner

The Rent Control Act gives very few rights to a building owner.  When courts refuse to give that limited rights also to the landlord/building owner it is an act which comes within the perview of unconstitutionality.

Bobby Mani

Mohd. Ayub & Anr.Vs. Mukesh Chand,

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

AFTAB ALAM AND RANJANA PRAKASH DESAI, JJ.

JANUARY 05, 2012

CIVIL APPEAL NO. 4495 OF 2006

Head Note:-

Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 – Section 21 – Comparative hardship indisputably is a relevant factor for determining the question as to whether the requirement of the landlord is bona fide or not and it is essentially a question of fact. The court would not determine the question only on the basis of sympathy or sentiment.

Chronological List of Cases Cited:-

Ganga Devi v. District Judge, (2008) 7 SCC 770
Rishi Kumar Govil v. Maqsoodan, (2007) 4 SCC 465
Bhimanagouda Basanagouda Patil v. Mohd. Gudusaheb, (2003) 3 SCC 101
Raghunath G. Panhale v. Chaganlal Sundarj, (1999) 8 SCC 1
Bhagwan Das v. JileyKumar, (1991) supp. (2) SCC 300

JUDGMENT

(SMT.) RANJANA PRAKASH DESAI, J.

1. This appeal, by grant of special leave, is directed against the judgment and order dated 12.9.2005 passed by the High Court of Uttaranchal at Nainital partly allowing the Writ Petition No. 296 of 2004 filed by the appellants.
2. The appellants/landlords filed an application under Section 21 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, ‘the U.P Act’) for eviction of the respondent/tenant on the ground that they bona fide required the premises occupied by the respondent to start business for their sons.
3. According to the appellants when the house in question was purchased by them the respondent was occupying two shops facing the road and two rooms situate at the rear of the said shops as a tenant of the previous landlord at the rent of Rs.35/- per month. These rooms are situated on the ground floor of the said building. The respondent continued to occupy the said rooms as tenant at the same rent. It is the case of the appellants that the first appellant is carrying on business in three small stalls situated in a shop of the Cantonment Council, the rent of which keeps increasing. The three sons of the appellants aged 23, 28 and 19 years are unemployed. Two sons want to start general merchant business in one shop and the third son wants to start wholesale egg business in the other shop. The appellants’ family consists of 13 members. Their one son is married and has three children and the two other sons are of a marriageable age. The married son wants to live in the room behind the shop. Presently, the appellants’ family is living in three rooms and a verandah with great difficulty. On these grounds the appellants filed the application for release of the rooms in occupation of the respondent.
4. In response, the respondent inter alia contended that he is conducting photography business from the said shops for many years; that he is enjoying goodwill in the area; that he will find it difficult to get premises in the same area; that appellants are financially well off as compared to him; that they own other properties and that greater hardship would be caused to the respondent if the decree of eviction is passed than that would be caused to the appellants if it is not passed.
5. The Prescribed Authority dismissed the application holding inter alia that the appellants are financially sound and other properties were available to them whereas except the suit shops the respondent does not have any place for residence and business and hence, if he is evicted from the shops in his occupation, he will experience more difficulty. The appeal carried from the said judgment was dismissed by the District Court holding inter alia that financial position of the appellants is far better than that of the respondent. They could have purchased a vacant bungalow and started business for their sons. Learned District Judge held that the appellants have purchased the building to make profit and then filed the application for eviction. According to learned District Judge, the respondent was doing business from the said shops for many years and it would be difficult for him to find a place for business. Hardship caused to the respondent would be more.
6. While disposing of the petition filed by the appellants the High Court rightly held that the landlord cannot be dictated by the tenant what business his sons should do and the observations made by the courts below to that effect and the findings reached by the courts below on bona fide requirement of the landlord are perverse. However, without going into the aspect of comparative hardship, the High Court directed that only one room out of the four rooms should be handed over to the appellants by the respondent as from the affidavit it appears that the respondent was using it as a passage. Being aggrieved by the said judgment, the appellants have approached this Court.
7. Shri Vijay Hansaria, learned senior counsel, appearing for the appellants submitted that having come to the conclusion that the need of the appellants was genuine, the High Court erred in directing the respondent to only handover one room to the appellants. The High Court has wrongly granted only partial relief to the appellants without going into the aspect of comparative hardship. In support of his submissions, learned counsel relied on Raghunath G. Panhale (Dead) by Lrs. v. Chaganlal Sundarji & Co., (1999) 8 SCC 1 Bhimanagouda Basanagouda Patil v. Mohd. Gudusaheb, (2003) 3 SCC 101 Ganga Devi v. District Judge, Nainital & Ors., (2008) 7 SCC 770
8. Shri Achal Chabbra, learned counsel for the respondent on the other hand submitted that the High Court has balanced the interest of both sides and hence no interference is necessary with the impugned judgment.
9. There is no challenge to the High Court’s finding that the appellants’ requirement is bona fide. The respondent has not assailed the High Court’s order. We concur with the High Court on this point. However, the High Court erroneously held that the view expressed by the courts below that greater comparative hardship would be caused to the respondent if decree of eviction is passed is correct so far as two rooms occupied by him for residence and one room in which he is running a shop is concerned. The High Court observed that no hardship will be caused to the respondent if one room is directed to be handed over to the appellants because it was used as a passage by the respondent. Surprisingly, the High Court has not given any reasons why only partial relief was being granted to the appellants. In fact, it has not discussed the issue of comparative hardship at all. Since this issue is of utmost relevance and the application of the appellants is of the year 1998, we proceed to deal with it.
10. Section 21 (1) (a) of the U.P. Act provides for eviction of a tenant on the ground of bona fide requirement of the landlord. The fourth proviso thereof states that the Prescribed Authority shall take into account the likely hardship to the tenant from the grant of the application as against the likely hardship to the landlord from the refusal of the application and for that purpose shall have regard to such factors as may be prescribed.
11. Rule 16 (2) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 ( for short, ‘the said Rules’) states which facts the Prescribed Authority has to consider while dealing with an application for release under clause (a) of sub-section (1) of Section 21 of the U.P. Act. Rule 16 (2) refers to building let out for purpose of any business and the facts which have to be taken into consideration are:
(a) length of tenancy of the tenant;
(b) availability of suitable accommodation for tenant;
(c) whether the landlords existing business is more flourishing than that which is proposed to be set up by him in the leased premises and
(d) need of self-employment of a son or married or unmarried or widowed or divorced or judicially separated daughter or daughter or a male lineal descendant of the landlord who has completed his or her technical education and who is not employed in government service.
12. In Ganga Devi this Court held that comparative hardship indisputably is a relevant factor for determining the question as to whether the requirement of the landlord is bona fide or not within the meaning of the provisions of the U.P. Act and the said Rules and it is essentially a question of fact. This Court observed that Rule 16 provides for some factors which are required to be taken into consideration. This Court clarified that the court would not determine the question only on the basis of sympathy or sentiment. This Court referred to its judgment in Bhagwan Das v. JileyKumar, (1991) supp. (2) SCC 300 where it is observed that the outweighing circumstance in favour of the landlord was that two of her sons after completing their education were unemployed and wanted to carry on business for self-employment. This Court further observed that there was an additional circumstance that the tenant had not brought on record any material to indicate that at any time during the pendency of this long drawn out litigation he had made any attempt to seek an alternative accommodation and was unable to get it. This Court also referred to its judgment in Rishi Kumar Govil v. Maqsoodan, (2007) 4 SCC 465 where it has particularly taken note of the fact that the landlady had no other shop where she can establish her son who is married and unemployed and there was nothing on record to indicate that the business of the father was huge or flourishing. This Court clarified that the length of the period of tenancy as provided under clause (a) of sub-rule (2) of Rule 16 of the said Rules is only one of the factors to be taken into account in context with other facts and circumstances of the case and cannot be a sole criterion or deciding factor to order or not the eviction. This Court held that in the circumstances of the case the balance tilted in favour of the unemployed son of the landlady whose need is certainly bona fide. After quoting the above judgment in Ganga Devi this Court gave six months time to the landlady to handover the premises to the landlord in the interest of justice.
13. In our opinion, Ganga Devi applies on all fours to the present case. The first appellant carries on his business from three small stalls of a shop of the Cantonment Council whose rent keeps on increasing. There is nothing on record to suggest that the appellants’ present business is more flourishing than the business which they propose to start in the leased premises. All the three sons of the appellants are educated but unemployed. They want to start business in the premises in occupation of the respondent. One of them is married and has three children. The other three are of a marriageable age. In all there are thirteen members in the appellants’ family and they are living in three rooms and one verandah with great difficulty. As against that the respondent’s family consists of four persons and there are four rooms in his possession. It is observed by the courts below that the appellants own other premises. However, details of those premises are not on record. The High Court has rightly noted that this bald assertion is based on conjectures. It is well settled the landlord’s requirement need not be a dire necessity. The court cannot direct the landlord to do a particular business or imagine that he could profitably do a particular business rather than the business he proposes to start. It was wrong on the part of the District Court to hold that the appellants’ case that their sons want to start the general merchant business is a pretense because they are dealing in eggs and it is not uncommon for a Muslim family to do the business of non-vegetarian food. It is for the landlord to decide which business he wants to do. The Court cannot advise him. Similarly, length of tenancy of the respondent in the circumstances of the case ought not to have weighed with the courts below.
14. We also find that the courts below were swayed by the fact that the financial position of the appellants was better than the respondent. The District Court has erroneously gone on to observe that the appellants can buy another building and start business. It has also observed that the appellants had purchased the building to make profit. In this connection we may usefully refer to the judgment of this Court in Bhimanagouda Basanagouda Patil where the District Judge decided the issue of comparative hardship in favour of the tenant solely on the basis of affluence of the parties. This Court observed that if this is the correct approach then an affluent landlord can never get possession of his premises even if he proves all his bona fide requirements. This Court further observed that the fact that a person has the capacity to purchase the property cannot be the sole ground against him while deciding the question of comparative hardship. If the purchase is pursuant to a genuine need of the landlord the said purchase has to be given due weightage unless, of course, the purchase is actuated by collateral consideration. This Court rejected the High Court’s finding that the landlord had secured the premises apparently in a game of speculation. Somewhat similar observations are made in this case by the District Court which in our opinion are totally unsubstantiated.
15. It is also important to note that there is nothing on record to show that during the pendency of this litigation the respondent made any genuine efforts to find out any alternative accommodation. We specifically asked learned counsel for the respondent to point out any evidence to establish that the respondent made any such genuine efforts. He was unable to answer this query satisfactorily.
16. In the ultimate analysis, we are of the view that the perverse findings of the courts below on the aspect of comparative hardship must be set aside. The High Court has rightly found the need of the appellants to be bona fide. It has however, fallen into an error in directing the respondent to handover only one room to the appellants. In our opinion, the hardship appellants would suffer by not occupying their own premises would be far greater than the hardship the respondent would suffer by having to move out to another place. We are mindful of the fact that whenever the tenant is asked to move out of the premises some hardship is inherent. We have noted that the respondent is in occupation of the premises for a long time. But in our opinion, in the facts of this case that circumstance cannot be the sole determinative factor. That hardship can be mitigated by granting him longer period to move out of the premises in his occupation so that in the meantime he can make alternative arrangement.
17. In the view that we have taken, the appeal succeeds. The impugned order is set aside to the extent it permits the respondent to retain possession of three rooms out of four rooms in his occupation. The respondent is directed to handover possession of all the rooms in his occupation to the appellants. He is granted six months time to vacate the premises in question on the condition that he files usual undertaking before the Registry of this Court within eight weeks from today.
18. The appeal is disposed of in the aforesaid terms.

The catelist for development of Kerala is this

The rent control Act balancing the interest of building owners and tenants will surely pave the way for development of Kerala in a healthy way. Commercial buildings and homes become cheaper and available for rent as the fear of losing the property is extinguished. More money will be injected into the system and the market will grow.