Aravindaksha Kenon v. Ali Akbar and Habeeb Khan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 8TH MARCH 2011 / 17TH PHALGUNA 1932 RCRev..No. 110 of 2011() -----------------------RCA.79/2006 of PRL.MUNSIFF COURT,THRISSUR .................... REV.PETITIONER/RESPONDENT/RESPONDENT -------------------------------------------------------- ARAVINDAKSHA KENON, S/O.KORAPPATH GANGADHARA MENON, KORAPPATH STORES, KURUPPAM ROAD, THRISSUR, THRISSUR DISTRICT. BY ADV. SRI.M.K.DILEEP KUMAR RESPONDENT(S): APPELLANT/RESPONDENT ----------------------------------- 1. ALI AKBAR, S/O.ABUBAKKER, VAISSYAM VEETTIL HOUSE, EDAKAZHIYUR AMSOM, CHAVAKAD TALUK, THRISSUR DISTRICT, REPRESENTED BY POWER OF ATTORNEY HOLDER HASSAN HAJI, S/O.ALI AKBAR, --DO-- 2. HABEEB KHAN, S/O.ZANAVULLAKKHAN, A.K.TEXTILES, PROPRIETOR, AFSAL MANZIL, APSARA GARDEN, NELLIKUNNU, THRISSUR DISTRICT. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 08/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. -----------------------R.C.R.No. 110 OF 2011** ## **------------------------** Dated this the 8[th] day of March, 2011 ## **O R D E R** Pius C.Kuriakose, J. Under challenge in this revision filed by the alleged tenant (respondent in RCP No.117/2001 of Thrissur Rent Control Court) is the judgment of the Rent Control Appellate Authority setting aside the order of the Rent Control Court referring the Rent Control Petition to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act for getting a finding as to whether the revision petitioner's claim that he is entitled to get immunity from eviction (permanent tenancy) under Section 106 of the Land Reforms Act is correct. 2. The rent control petition was instituted by the landlord seeking eviction on the ground of arrears of rent under Section 11(2)(b) and bona fide need for own occupation under Section 11 (3). The revision petitioner contended that he is a lessee of the land. It was contended that the building in question was RCR.No.110/2011 2 constructed by him on the land leased out by the respondent for commercial purpose and he is entitled to the benefit of Section 106 of the KLR Act. The Rent Control Court took the view that a question of tenancy arises for consideration and stayed proceedings under Section 125(3) and referred the rent control petition to the Land Tribunal having jurisdiction for getting a finding regarding the revision petitioner's eligibility for benefits under Section 106. 3. The learned Appellate Authority, on considering the appeal preferred by the landlord, has passed the impugned judgment setting aside the order of the Rent Control Court and directing that the records, which were in the meanwhile sent to the Land Tribunal, be called back, so that the Rent Control Court itself can take a decision on the issue immediately. 4. A reading of the impugned judgment of the Appellate Authority will show that the learned Appellate Authority has relied on the judgment of this court in Govinda Panicker v. Sreedhara Warrier (2002 (2) KLT 43), wherein this court held that questions of tenancy, which are required to be answered under Section 125(3), are only such claims of tenancy which are RCR.No.110/2011 3 within the purview of Section 13 and 72 of the Kerala Land Reforms Act. According to this court, the claim under Section 106 is not a tenancy in that sense and therefore such claims need not be referred and can be decided by the civil court itself. 5. The argument, which was raised before us by Sri.M.K.Dileepkumar learned counsel for the revision petitioner, was that this is a case where the revision petitioner has raised a claim of permanent tenancy or permanent immunity from eviction in terms of provisos to Section 11 (1) of the Act 2 of 1965. According to the learned counsel, it is trite that when claim of permanent tenancy or permanent immunity from eviction is raised by a tenant facing eviction proceedings before the Rent Control Court, the Rent Control Court will cease to have jurisdiction and only the civil court will have jurisdiction. According to the learned counsel, the Rent Control Court is not a regular civil court and hence even if the learned Appellate Authority's decision to set aside the order of reference made to the Land Tribunal is right what the learned Appellate Authority should have done was to refer the issue to a competent civil court. RCR.No.110/2011 4 6. We have anxiously considered the submissions of Mr. Dileepkumar. This court in Govinda Panicker v. Sreedhara Warrier (cited supra) has held that the protection claimed by lessee under Section 106 of the Land Reforms Act is not a tenancy of the nature contemplated under Section 13 or Section 72 of the Land Reforms Act or a Kudikidappu right contemplated by Section 80B. It was accordingly, that this court took the view in Govinda Panicker's (cited supra) that claims for protection under Section 106 are not liable to be referred to the Land Tribunal. According to us, reasoning adopted by this court in taking such a view in the above case is quite sound. In fact, Mr.Deleep Kumar also did not argue before us that the revision petitioner's claim for protection under Section 106 is to be enquired into and decided by the Land Tribunal. His argument was through a different perspective. The same was based on Section 11(1) of Act 2 of 1965 and its proviso. The argument was that as it is a claim of permanent tenancy or permanent immunity from eviction that is raised it is a civil court alone that is competent to take a final decision on the same. We are unable to accept the submission of Mr.Dileepkumar that in all cases RCR.No.110/2011 5 where a tenant facing eviction proceedings before the Rent Control Court raises a plea of permanent tenancy or permanent immunity from eviction whether it be under Section 106 of the KLR Act or otherwise the Rent Control Court is divested of jurisdiction. As in the case of plea of denial of title, when a plea of permanent tenancy or permanent immunity from eviction is raised by the alleged tenant facing eviction proceedings in the Rent Control Court, the Rent Control Court has the jurisdiction to decide whether the claim is bona fide. Decision on the question whether the claim is bona fide can be taken by the learned Rent Control Court after holding an enquiry. The judgment of this court in Aboobacker v. Girija (1995 (1) KLT 553) should guide the Rent Control Court while taking decision. The Rent Control Court should permit both sides to produce materials which will enable the court to decide whether the claim of permanent tenancy or permanent immunity from eviction raised by the revision petitioner is a bona fide one. If the result of the enquiry is that claim is a bona fide one, then only the Rent Control Court will be justified in relegating the parties to a civil court. 7. We will now examine whether the ancillary argument of RCR.No.110/2011 6 Sri.Dileep Kumar that Rent Control Court is not a civil court and hence, at any rate, the issue whether the revision petitioner is entitled for the benefits under Section 106 of Kerala Land Reforms Act will have to be referred to the regular Civil Court even on the basis of the judgment in Govinda Panicker v. Sreedhara Warrier (cited supra). It is Section 125(1) of the Kerala land Reforms Act which bars the jurisdiction of the civil court in matters which are required to be dealt with by the Land Tribunal under the Kerala Land Reforms Act. It is provided under Section 125(8) that for the purpose of the Section, the Civil Court shall include a Rent Control Court as defined in Kerala Buildings (Lease and Rent Control) Act, 1965. Therefore, the view of the Division Bench that issues under Section 106 of the Kerala Land Reforms Act can be dealt with by the Civil Court, necessarily means that such issues can be dealt with by the Rent Control Court also if they arise before the Rent Control Court. At the same time we notice that for the purpose of finally deciding questions of title and claims of permanent tenancy once the contention or claim of the tenant is found to be raised bona fide the rent control court is not treated as equivalent to a regular RCR.No.110/2011 7 civil court. 8. The result of the above discussion is that the judgment of the Rent Control Appellate Authority will stand clarified as above and modified to the extent of directing the Rent Control Court to hold enquiry into the question whether the claim of permanent tenancy/permanent immunity from eviction raised by the revision petitioner on the basis of Section 106 of the Kerala Land Reforms Act is a bona fide one. In case the finding comes to be that the same is not a bona fide one the merits of the eviction grounds raised in the RCP may be examined and decision will be taken in the RCP accordingly. If the claim is found to be a bona fide one, the Rent Control Court shall have recourse to the procedure envisaged under the second proviso to Section 11(1) of Act 2 of 1965. ## **PIUS C.KURIAKOSE,JUDGE** **N.K.BALAKRISHNAN, JUDGE** dpk/kns RCR.No.110/2011 8