Cherthala Taluk NSS Union No. 967 v. Prasanna Babu

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE P.UBAID FRIDAY, THE 31ST DAY OF JANUARY 2014/11TH MAGHA, 1935 RCRev..No. 240 of 2011 ( ) --------------------------AGAINST THE JUDGMENT IN RCA 72/2008 OF RENT CONTROL APPELLATE AUTHORITY, ALAPPUZHA IN RCP NO.10/2006 OF RENT CONTROL COURT, CHERTHALA. ## REVISION PETITIONER(S)/RESPONDENTS/PETITIONERS: ---------------------------------------------------------------------------- 1. CHERTHALA TALUK N.S.S.UNION NO.967 REPRESENTED BY ITS PRESIDENT N.S.S. UNION BUILDING CHERTHALA. 2. ITS SECRETARY, N.S.S. UNION BUILDING, CHERTHALA. BY ADV. SRI.B.PRAMOD ## RESPONDENT(S)/APPELLANT/RESPONDENT: ----------------------------------------------------------- PRASANNA BABU, S/O.PRABHAKARAN BIPI NIVAS, KOKKOTHAMANGALAM VILLAGE CHERTHALA KIZHAKKUM MURI, CHERTHALA TALUK ALAPPUZHA 6885001. R1 BY ADV. SRI.P.V.JAYACHANDRAN THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 31-01-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **K.T.SANKARAN & P.UBAID, JJ.** ---------------------------------- R.C.R.No.240 of 2011 E ---------------------------------Dated this the 31[st] day of January, 2014 _**O R D E R**_ ## **Ubaid, J.** The landlord who brought an application for eviction of the tenant under Section 11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act before the Rent Control Court, Cherthala, is the revision petitioner herein. Eviction on the ground of cessation of occupation was allowed by the trial court, but the order of eviction was set aside in appeal by the Appellate Authority (District Judge, Alappuzha) in R.C.A.No.72 of 2008. Aggrieved by the order of the Rent Control Appellate Authority, the landlord has come up in revision. RCR 240/2011 2 2. The petition schedule building was let out to the tenant in the year 1984 on a monthly rent of ` 400/-. Subsequently, the rent was enhanced to Rs.500/- per month. The case pleaded in the petition for eviction is that the respondent-tenant has not been doing or conducting any business activity in the tenanted premises and he has ceased to occupy the premises since March, 2005. 3. The respondent - tenant entered appearance before the trial court and resisted the prayer for eviction on the contention that he has not ceased to occupy the premises, and that he is still conducting business in the tenanted premises. Originally the business was in plywood, but later he changed his business, and now it is a business in gold plated ornaments. 4. The trial court formulated the points for consideration RCR 240/2011 3 and the case proceeded for trial. The Secretary of the landlord was examined as PW1 and Exhibit A1 was marked on the side of the landlord. The tenant was examined during trial as RW1 and Exhibits B1 to B8 were marked on the side of the tenant. During the trial proceedings, the trial court had appointed an Advocate Commissioner to inspect the premises. The Advocate Commissioner was examined as PW2 and his report was marked as Exhibit C1. The Advocate Commissioner submitted report before the court after inspecting the premises on three occasions. He could not see the tenant conducting any business there, or he could see the building closed on the three occasions on which he made visits in the premises. On an appreciation of evidence, including the report of the Advocate Commissioner, the trial court found that the tenant has ceased to occupy the premises for more than six months. RCR 240/2011 4 5. In appeal, the Appellate Authority reversed the finding under Section 11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act on the ground that the tenant has substantiated his case of continued possession by evidence including the bills for payment of electricity charges. 6. On hearing both sides, and on a perusal of the materials, we find that the approach of the Rent Control Appellate Authority as regards the question of cessation of occupation in this case is not correct and it is liable to be reversed in exercise of the powers of revision under Section 20 of the Act. 7. PW1, examined on the side of the petitioners, has given definite and consistent evidence that the tenant has kept the tenanted premises closed without conducting any business activity RCR 240/2011 5 there, that the tenant has ceased to occupy the premises and that he knows these facts directly. This definite evidence given by the witness stands not effectively discredited in cross examination. The tenant would contend that he has been actually conducting business there, but he happened to close it down for a few days when he had been away in an Ashramam. 8. The report of the Advocate Commissioner, and also the evidence of the Commissioner will convince the court that the tenanted premises was found in an abandoned condition when the Commissioner inspected the premises on three occasions. Some scrap materials and articles were seen dumped or kept in front of the closed room, by the Advocate Commissioner, and the Commissioner has reported all these facts. This will indicate that the tenant has in fact abandoned the business. Of course, he has RCR 240/2011 6 produced some electricity bills. But he has admitted in evidence that in the year 2006, he has paid only the minimum electricity charges. This fact also would show that he has not, in fact, been doing any business in the premises. 9. Another important fact is that pending the proceedings the tenant had made an application (Exhibit A1) before the Insolvency Court to declare him insolvent, and in the said proceedings, he has a definite case that he has lost his business and that he has become penniless. Exhibit A1 document will show that the tenant has in fact closed down his business, or has ceased to occupy the tenanted premises. 10. Mere act of possession on the tenanted premises will not constitute occupancy as meant under Section 11(4)(v) of the RCR 240/2011 7 Act. Possession in relation to property is a legal concept indicating some control over the property, but occupancy is something more. It requires some positive act in exercise of right of possession. It is a condition in which the person in possession resides in the premises or does some activity there, be it business activity or other acts in exercise of rights of possession. The position is well clear from the decision of this Court in **Simon vs. Rappai (2008(3) KLT 121)** . In the said decision, this Court has referred to some earlier decisions, and has held thus : “15. As far as the ground available under S. 11(4)(v) is concerned, it is well settled by various decisions of this Court that if the landlord has discharged the initial burden, it is upto the tenant to lead evidence in the matter to show that he has been conducting business in the premises. A learned Single Judge of this Court in the decision report in _Abbas v. Sankaran Namboodiri_ (1993 (1) KLT 76) while examining the question held that, the word 'occupation' is used to denote the tenant's actual physical use of the building either by himself or through his agents or RCR 240/2011 8 employees and legal possession is not sufficient. It was held that, “however, if a landlord succeeds in proving that his tenant did not occupy the building almost near the period fixed in S. 11 (4)(v) of the Act, it may help the court to presume that there could have been cessation of occupation for the statutory period. Such background presumption is not anathematic to the law of evidence.” In para.7 it was observed that, “be that as it may, burden is on the landlord to prove that the tenant ceased to occupy the building for six months. But it is hard to expect a landlord to prove the precise period during which his tenant ceased to occupy the building. However, if the court is satisfied on the evidence and/or with the aid of presumptions that the tenant did not occupy the building for such length of time as would cover the statutory period, then the burden would shift to the tenant to show that he had reasonable cause for such non-occupation.” Finally it was also observed in para.9 that, 'but, possession must combine with something more to make it occupation. Legal possession does not by itself constitute occupation.' These principles can be safely applied to the facts of this case. 16. The learned counsel for the respondent relied upon the decision of a Division Bench of this Court reported in _Kayikattil Rajagopalan v. Gopalan_ (2004 (1) KLT SN 54 (C.No.70) = ILR 2004 (2) Ker. 102) to contend that if no RCR 240/2011 9 business is carried on then the presumption is that there is cessation of occupation. The Division Bench examined the question in the light of the requirement of the provision namely, S. 11(4)(v) and it was held as follows: “Occupation in the context of S.11(4)(v) means only physical occupation. When it pertains to a residential building, it means occupation through residence and when it pertains to a commercial building, it means occupation by conduct of business. Certainly it is not obligatory that the tenant of a residential building should be present physically in the building all the 24 hours of the day and tenant of a commercial building should be present all the business hours of the day. But in cases pertaining to commercial building like the present one let out for business purpose, if it is seen that no business is being carried on in the premises and that the premises are remaining closed, there will be justification to presume that there has been cessation of occupation. In the instant case, the premises were let out originally for the conduct of grocery business. Admittedly grocery business is no longer being conducted by the tenant. Reasonableness or otherwise of the cause due to which the tenant ceased to occupy the premises is a matter especially within the tenant's knowledge. Once cessation is shown, it is for the tenant to prove that the same has been due to a reasonable cause if he needs to avert eviction. We will mention that reasonable cause can RCR 240/2011 10 never be a cause within the control of the tenant himself.” To the same effect is the decisions reported in _Mathai Antony v. Abraham_ (2004 (3) KLT 169) and in _Kurian Thomas v. Sreedharan Menon_ (2004 (3) KLT 326). 17. The decisions reported in _Mathai Antony_ v. _Abraham_ (2004 (3) KLT 169) and _Kurian Thomas v. Sreedharan Menon_ (2004 (3) KLT 326) have laid down the meaning of the term 'occupy' and considered the question whether physical possession of the premises alone will satisfy the requirements of S. 11(4)(v) of the Act. In the decision reported in _Mathai Antony v. Abraham_ (2004 (3) KLT 169), it was contended by the landlord that intermittent opening of the shop or the presence of the tenant in the premises would not show that the tenant is using the premises. In the light of the said contention, their Lordships examined the scope of the provision. It was held that, 'the word 'occupy' has a distinct meaning so far as the Rent Act is concerned when pertains to tenant, that is, possession with user. We extract the findings rendered in para.4 which are in the following terms : “The word “occupy” occurring in S.11(4)(v) has got different meanings in different context. The meaning of the word “occupy” in the context of S. 11(4)(v) has to be understood in the light of the object and purpose of the RCR 240/2011 11 Rent Control Act in mind. The rent control legislation is intended to give protection to the tenant, so that there will not be interference with the user of the tenanted premises during the currency of the tenancy. Landlord cannot disturb the possession and enjoyment of the tenanted premises. Legislature has guardedly used the expression “occupy” in S.11(4)(v) instead of “possession”. Occupy in certain context indicates mere physical presence, but in other context actual enjoyment. Occupation includes possession as its primary element, and also includes “enjoyment”. The word “occupy” sometimes indicates legal possession in the technical sense ; at other times mere physical presence. We have to examine the question whether mere “physical possession” would satisfy the word “occupy” within the meaning of S.11(4)(v) of the Act. In our view mere physical possession of premises would not satisfy the meaning of “occupation” under S.11(4)(v). The word “possession” means holding of such possession, animus possidendi, means, the intention to exclude other persons. The word “occupy” has to be given a meaning so as to hold that the tenant is actually using the premises and not mere physical presence or possession. A learned single Judge of this Court in _Abbas v. Sankaran Namboodiri_ (1993 (1) KLT 76) took the view that the word occupation is used to denote the tenant's actual physical use of the building either by himself or through his agents or employees. The Division RCR 240/2011 12 Bench of this Court of which one of us is a party (Radhakrishnan, J.), in _Rajagopalan v. Gopalan_ (2004 (1) KLT SN 54 (C.No.70) interpreting S.11(4)(v) took the view that occupation in the context of S.11(4) means only physical occupation, which requires further explanation. Occupation in the context of S.11(4)(v) means actual user. If the landlord could establish that in a given case even if the tenant is in physical possession of the premises, the premises is not being used, that is a good ground for eviction under S.11(4)(v) of the Act. S.11(4) uses the words “put the landlord in possession” and not “occupation”, but 11(4)(v) uses the words “the tenant ceases to occupy”. In S.11(4)(v) in the case of landlord the emphasis is on “possession” but in the case of tenant the emphasis is on “occupation”. The word “occupy” has a distinct meaning so far as the Rent Act is concerned when it pertains to tenant, that is, possession with user.” The Division Bench followed the decision of the Apex Court in _Ram Dass v. Davinder_ ((2004) 3 SCC 684) in arriving at the said conclusion. In 2004 (3) KLT 326 the question was again examined in the light of the contention that the landlord should establish that the tenant has abandoned the building so as to attract S.11(4)(v). Herein it was held that mere physical possession of the premises by the tenant is not sufficient and there should be use of the RCR 240/2011 13 building. It was also held that the tenant need not abandon the building so as to attract S.11(4)(v) of the Act. Their Lordships held as follows : “Rent Control Court and Appellate Authority used words which are not in the statute. Statute has not used the word “abandonment”. The word “abandon” means to give up, to desert etc. Tenant need not abandon the building so as to attract S.11(4)(v) of the Act. Landlord is also not expected to establish that tenant has abandoned the building so as to attract S.11(4)(v). Once landlord could establish that tenant has ceased to occupy the premises continuously for six months prior to the filing of the petition he is entitled to get order of eviction under that section. The word “occupation” must be understood to be not mere physical possession. Tenant should use the building. The word “occupy” means to cohabit with, to hold or have in possession. Tenanted premises must be in the state of being enjoyed and occupied. The word “occupy” used by the statute would show that tenanted premises be put to use. Tenant cannot be heard to contend that he is having physical possession of the premises though not in occupation. So far as this case is concerned, we are of the view landlord has discharged the burden and then the onus has shifted to the tenant and the tenant could not establish that he has not ceased to occupy the premises and even if there is cessation that was with RCR 240/2011 14 reasonable case.” The situation herein is similar. Merely by opening the room and retaining the telephone the tenant cannot be heard to say that he is in occupation of the building and is in actual use of the same for conducting business as the physical possession alone is not sufficient at all.”xxxxxxxxxxxxxxxxxxxxxx 11. As discussed above, the electricity payment bills produced will not prove the case of the tenant that he has not abandoned his business or that he has still been occupying the premises for business purposes. The report and the evidence of the Advocate Commissioner will show that the tenant has in fact abandoned his business in the tenanted premises. The Advocate Commissioner could see so many scrap materials and articles dumped in front of the closed shop of the respondent-tenant, but the tenant has no explanation for this in his evidence. RCR 240/2011 15 12. We do not think that during a short period of 15 days when the tenant had been away in an Ashramam, the nearby shop owner would dump his articles in front of the closed shop of the respondent. That he had paid only the minimum electricity charges in 2006 will also probabilise that the tenant has in fact ceased to occupy the premises, or that he has not been conducting any business activity in the tenanted premises. 13. We find that the approach of the Appellate Authority as regards the act of occupation is erroneous in the light of the definite evidence adduced before the court, that the tenant has in fact ceased to occupy the premises. Just because he has legal possession over the premises, it cannot be found that he has been still occupying the premises. As discussed above, occupation meant under the law under Section 11(4)(v) of the Act is RCR 240/2011 16 different from act of possession. The ground for eviction under Section 11(4)(v) of the Rent Control Act is cessation of occupation and not cessation of possession. 14. Accordingly, we find that the impugned decision of the Rent Control Appellate Authority is liable to be reversed in revision. On facts, we find that the landlord has well proved a case of cessation of occupation and the tenant has no explanation why the tenanted premises was found kept closed by the Advocate Commissioner. As regards the legal question involved also, we find, on the basis of earlier decisions of this Court, that the tenant in this case has in fact ceased to occupy the premises, though possession continues with him. 15. In the result, this revision petition is allowed. The RCR 240/2011 17 impugned judgment of the Appellate Authority in R.C.A.No.72 of 2008 is set aside and the order of eviction passed by the trial court in R.C.P.No.10 of 2006 is confirmed. The parties will bear their respective cost of this revision. **K.T.SANKARAN JUDGE P.UBAID JUDGE** csl RCR 240/2011 18 ## **K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ.** ----------------------------- R.C.R.No.240 of 2011 E ---------------------------Dated this the 27[th] day of September, 2012 ## _**O R D E R**_ ## **K.T.Sankaran, J.** It is submitted on behalf of Advocate K.S.Hariharaputhran that he is not appearing in the case as he was not engaged by the party. The counsel submits that the name of Advocate Hariharaputhran may be deleted from the cause list. The submission is just and reasonable. The name Advocate RCR 240/2011 19 ## Hariharaputhran shall be deleted from the cause list. Take steps to serve notice on the respondent. **K.T.SANKARAN JUDGE** **M.L.JOSEPH FRANCIS JUDGE** csl