Law and Reality: An Indepth Analysis of Section 11(2)(c) of the 

Kerala Buildings (Lease and Rent Control) Act, 1965

(By T.S. Murali, Ottapalam)

It was a remarkable judgment by the above two Honorable Judges whereby they held that the old procedure of fixing fair rent, (under S.116 of the Transfer of Property Act and Ss.5, 6 and 8 of the Rent Control Act, 1965) imposing restrictions in the revision of rent, amounted to unreasonable restriction affecting the fundamental rights guaranteed under Art.19(1)(g) and to the extent of its inconsistency, the said provision would be void under Art.13(1) of the Constitution of India, so far as fixation of rent is concerned. This is so because the construction of buildings and letting them out to tenants, by landlords would come under Art.19(1)(g) of the Constitution of India (to practice any profession, or to carry on any occupation, trade or business) and hence is a fundamental right.

As Sections 5, 6 and 8 of the above Act were held as unconstitutional, they were struck down by the Hon’ble High Court in Issac Ninan v. State of Kerala (1995 (2) KLT 848). So, S.5(1) was retained in the Act (in Edger Ferus case, Supra) to enable the Rent Control Courts to exercise its power to fix fair rent, as total prohibition in claiming enhanced rent would amount to unreasonable restriction and also would be violative of the fundamental rights of the landlords as guaranteed under Art.21 of the Constitution of India. (No person shall be deprived of his life or personal liberty except according to procedure established by law).

The Former Chief Justice of India, P.B.Gajendragadkar, said, “Wise judges never forget that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgments, the fearlessness, fairness and objectivity of their approach and by the restraint, dignity and decorum which they observe in their judicial conduct. The bottom line is “deserve respect from the public at large.”

The ‘Supra’ case (2004 (1) KLT 767) will be an eye-opener to some of the unconstitutional provisions in the very old Kerala Buildings (Lease and Rent Control) Act, 1965, as the respective State Governments are not contemplating any steps to amend the said provisions, except some amendment bills (in the year 2002 and 2007) which never got passed by the respective Legislative Assemblies.

One provision which seems to have escaped the eye of everyone is the relief a tenant gets under S.11(2)(c) of the Act. According to this sub-section, the Rent Control Court can vacate the order, directing the tenant to put the landlord in possession of the building for rent arrears. 

The eviction order shall not be executed before the expiry of one month from the date of such order or such further period as the Rent Control Court may in its discretion allow, if the tenants deposits the arrears of rent with interest at six percent and cost of proceedings within the said period of one month, or such further period. S.11(10) gives the powers to the Rent Control Court to enlarge the time frame given to the tenant to deposit rent arrears. This power can be exercised more than once. (Sulochana v. Kalyani (2006 (1) KLT SN 85 (C.No.123). (‘more than once’ means any number of times) The period of one month could be counted from the date of order passed in revision also. (Gangadhara Rao v. Sidhartha Paniker (1988 (1) KLT 333).

What happens in reality is that a perpectual and continuous defaulter (tenant) of rent, as well as a tenant who has some silly or serious animosity towards the landlord, commits the default again and again. The landlord has to file RCP’s again and again against the same tenant or against tenants who have committed several defaults in the past. It makes justice through litigation inordinately dilatory and costly and the law becomes the (only) means for the aggrieved landlord to get relief. The tenant is directed to pay the arrears with interests and costs, but the law does not consider the hardships a landlord has to face going through the trial again and again, (especially in the case of aged, indisposed and women landlords). The tenant is getting a notice to pay arrears which is mandatory under S.11(2)(b) of the Act. Some tenants do not even care about this registered notice. They may, to take some action, pay a small amount and again make a default and keep rent arrears pending through out. Some clever tenants even have misused this provision to frustrate and bend the landlord to their tunes, so that the landlord may finally sell the building to the tenant for a meager or far less than the market price.

Justice V.R. Krishna Iyer has said : “Man lives in the short run, but litigation lives in the long run”. It is common knowledge that in our country litigation takes several twists and turns and literally crawls in the long run. Dispensation of justice gets unduly delayed thereby justifying the axiom, “Justice delayed is justice denied”. He adds, the litigant has only one life, but the litigation has several lives to see it’s end. One appeal is necessary, two is too much, but we have four to five decks to spiral up. The (Supra) appeal in the Hon’ble Apex Court took five years to be final. (Civil Appeal No.7088 of 2004, Edger Ferus v. Abraham Ittycheria)

There is a provision in the Jammu and Kashmir Houses and Shops Rent Control Act, 1966. Under S.11(1) of this Act, the tenant shall not be entitled to the benefit of protection against eviction under this section, if, notwithstanding the receipt of notice under proviso to cl.(i), the tenant makes a default in the payment of the rent, on three occasions within a period of eighteen months. (referred to Cl.(i) of the proviso to S.11(1) of the Act).

In G.Reghunathan v. K.V.Varghese (2005 (4) KLT 147 (SC) = AIR 2005 SC 3680), Justice P.K.Balasubramanian, considered the scope of analogous provisions in sister enactments of other States. 

The Apex Court has held that even a part payment of rent amounts to default of rent. (Janak Raj v. Pardeep Kumar in Civil Appeal No.7080 of 2001). This is a remarkable judgment since there are several tenants who make continuous default and part payments, especially when the landlords make a living out of the rental income. They have to pay municipal and other taxes, do the repairs and maintenance for the tenanted building, pay electricity and water charges, if the tenants commonly enjoy it in the building.

Socrates once said, “Four things belong to a judge; to hear courteously, to answer wisely, to consider soberly and to decide impartially. “It is not what you look at that matters, but what you see”, so said the American Philosopher, Henry David Thoreau. Law is only a law, if it is life preserving and life enhancing. The concept of equality conceived and incorporated in Art.14 of the Constitution is intended to achieve it. The very idea of law carries with it a value. Man needs law and must do what is necessary to create and maintain it. No doubt, a keen and burning desire to do justice must be the foundation of judicial eminence.

In Rakesh Wadhawan and Ors. v. Jagdamba Industrial Corporation & Ors. ((2002) 5 SCC 440), the Hon’ble Supreme Court held that a Statute can never be exhaustive. Legislature is incapable of contemplating all possible situations which may arise in future litigation and in myriad circumstances. The scope is always there for the court, to interpret the law with pragmatism and ‘consistently with the demands of varying situations’. The legislature intent has to be kept in mind and not in a pedantic manner. Not the letter of the law by assigning a literal meaning, but the purposes ought to be achieved by the legislature has to be kept in view. A benefit granted by the legislature to a certain section or community cannot be said as a violation of Art.14 of the Constitution. But a Court should not shut its eyes towards the practical realities of life. A legislative intent to protect one party should not be a violation of the Constitution on the rights of the other party. The legislation will not or should not intent to protect a recalcitrant or rebutting party.

S.11(2)(c) gives a tenant undue advantage and makes the life of the landlord miserable. Suppose, if there are 25 shops which the joint or single landlord’s have let on rent and if ten of them defaults on monthly payment of rent, the landlords are put to great hardship. The proviso to cl.(b) of S.11(2) creates a liability on the tenant to pay interest at six percent per annum on the arrears of rent and the cost of the proceedings. It is immaterial even if there is any stipulation in the agreement of tenancy, to pay a higher rate of interest. Whereas the landlord might be paying a very high rate of interest on a loan taken for a newly constructed building or a re-constructed building or even loans taken for major repairs and maintenance. There have been many instances whereby the interest was allowed only from the date of the Trial Court order or the revision court order and not from the date of actual default. The costs allowed in final orders are a bare minimum whereas in actual terms they are ten times higher. No lawyer would or can argue a case for as low as 500 rupees in the current scenario of high inflation rates and variation in the cost of living index. The Advocates Act surely needs an amendment for the benefit of the lawyers themselves as well as a rightful tenant or landlord. 

Dr.Justice AR.Lakshmanan, Chairman, Law Commission of India, has said that ‘all have equal rights, but unfortunately all cannot enjoy the rights equally'. The Constitution of India guarantees to all its citizens rights of life and personal liberty, right to equality, right to freedom, etc. Apart from these public rights, there are various private rights arising from torts and contracts and also various social welfare legislations.

The British Judicial system is one which has high regard for individual liberty. Lord Denning has said, every legal problem is essentially ethical in nature. If there is conflict between legal justice and ethical justice, it is perfectly within the province of a Judge to remove it. He declared, “my root belief is that the proper role of a Judge is to do justice between the parties before him. If there is any rule of law which impairs the doing of justice, then it is the province of the Judge to do all that he legitimately can do to avoid that rule or even to change it - so as to do justice in the instant case before him. He need not wait for the legislature to intervene”. Lord Denning clarifies what is Justice ? He says, it is not temporal but eternal. It is not the product of a man’s intellect but of his spirit. Lord Denning believed in humanistic ethics rather than authoritarian ethics. In authoritarian ethics, an authority states what is good for man and lays down the law and norms of conduct. In humanistic ethics, man himself is both the norm giver and the subject of norms.

Justice Harold Andrew Blackmun (1908-1999), who served the U.S. Supreme Court until 1994 has observed, ‘There is a world out there, the existence of which the Court, I suspect, either choose to ignore or fear to recognize. The Constitution must be a force that would serve justice to all evenhandedly.

Art.13(1) and 13(2) of The Constitution says laws inconsistent with or in derogation of the fundamental rights before the commencement of this Constitution or any laws passed by the State which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. A landlord can apply to the Rent Control Court under sub-ss.11(2) (3), (4), (7) and (8) of the Act for an order “directing the tenant to put the landlord in possession of the building”, (possession is permanent, except in sub-ss.11(4)(iv) and 11(5) where the eviction and possession is temporary) These sub-sections deal with the grounds on which the landlord can get back from the tenant, the permanent and temporary possession of the tenanted premises. The same expression is used in S.108(q) of the Transfer of Property Act, 1882. The grounds under S.11(2)(b) to get back permanent possession of the building is defeated by S.11(2)(c) which is unconstitutional.

Construction of buildings and letting them out to tenants, by landlords would come under Art.l9(1)(g) of the Constitution of India (to practice any profession, or to carry on any occupation, trade or business) and hence is a fundamental right. No company, firm, dealer or shop-keeper will do business with a client/customer who defaults in payment. They will re­consider their decision to do business with customers who show a tendency of lameness in payment. 

Art.14 of The Constitution says ‘The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India’. There is no Section in The Kerala Buildings (Lease and Rent Control) Act, 1965 which gives the landlord the fundamental right to receive rent without fail and delay, unless there is a specific reason on the part of the tenant. S.11(2)(b) is only a remedy to evict the tenant for rent arrears but the landlord looses this right due to S.11(2)(c) of the Act.

Art.21 of the Constitution says, ‘no person shall be deprived of his life or personal liberty except according to procedure established by law’. But if that law (a certain provision in the Rent Control Act) violates Art.13(1) and (2) of the Constitution, then how can a person get protection of his liberty ?

Art.39 of the Constitution mentions about the ‘Directive Principles of State Policy'. Art.39(a) says that the citizens, men and women equally, have the right to an adequate means of livelihood. The landlord’s adequate means is to get the rent in time and without delay or fail.

Under PART IVA of the The Constitution of India, Art.51A(h) says that ‘it is the fundamental duty of every citizen of India to develop the scientific temper, humanism and the spirit of inquiry and reform’. Every adversity creates an opportunity. When there is a “duty to speak”, it is for responsible lawyers, citizens, former Judges and sitting Judges to speak out, publicly or privately and create an opinion.

“Many ideas grow better when transplanted into another mind than in the one where they sprung up”. This quote by Oliver Wendell Holmes Jr., (1841-1935) American Judge and Jurist, will go a long way, if the legislature and the legal fraternity upholds the virtues and values of the rights propounded by the fathers of the Constitution of our country.