Cheruvalath Krishnadasan v. Addissery Raghavan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **TUESDAY, THE 25TH DAY OF JULY 2017/3RD SRAVANA, 1939** **RCRev..No. 377 of 2016 (A) -------------------------AGAINST THE COMMON JUDGMENT IN RCA 53/2015 of I ADDL. DISTRICT COURT/RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE DATED 30-01-2016** **AGAINST THE COMMON ORDER IN RCP 176/2013 of II ADDL. MUNSIFF COURT/RENT CONTROL COURT, KOZHIKODE DATED 28-02-2015** **REVISION PETITIONER(S)/RESPONDENT/PETITIONER:** **--------------------------------------------** ## **CHERUVALATH KRISHNADASAN,** **S/O. IMBICHEKKAN, AGED 68 YEARS, PANTHEERANKAVU POST, KOZHIKODE - 673019** **BY ADVS.SRI.K.M.FIROZ SMT.M.SHAJNA SRI.S.KANNAN SMT.UMMUL FIDA SRI.E.C.AHAMED FAZIL** ## **RESPONDENT(S)/APPELLANT/RESPONDENT:** **-----------------------------------** **ADDISSERY RAGHAVAN, S/O. LATE VELAYUDHAN, AGED 54 SINDHOOR TEXTILES, PANTHEERANKAVU POST, KOZHIKODE - 673019.** **BY ADVS. SRI.V.V.SURENDRAN SRI.P.A.HARISH** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 25-07-2017, ALONG WITH RCR. 378/2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** _**OKB**_ 'CR' K.HARILAL & P. SOMARAJAN, JJ. -----------------------R.C.R. Nos.377 and 378 of 2016 -----------------------Dated this the 25[th] day of July, 2017 ## O R D E R ## **Harilal, J.** The landlord, who is confronting with a common order dismissing the Rent Control Petitions, filed under Section 11(8) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, “the Act”), has come up before this Court, in Revision, challenging the divergent findings under Section 11(8) of the Act. 2. The Rent Control Court found that the landlord is entitled to get an order of eviction under Section 11(8) of the Act, as the need for additional accommodation claimed by the landlord is a bona fide one and the hardship, which may be caused to the tenant, if an order of eviction is passed, will not outweigh the advantage to the landlord. But, in the appeals, the Appellate Authority reversed the RCR.377 & 378 of 2016 :2: findings of the bona fides found by the Rent Control Court and further found that the landlord has vacant rooms, in three other buildings of his own, in his possession and thereby the need projected is not a bona fide one and the hardship that may be caused to the tenant would outweigh the advantage to the landlord. Thus, the findings of the courts below under Section 11(8) of the Act stand in divergence. 3. According to the petitioner/landlord, he is a Government contractor and he bona fide needs the petition schedule shop room, for using as an office of his firm, namely M/s.Prabeesh Constructions. He wants the petition schedule shop room, for the purpose of accommodating his staff, installing computers and for providing chambers for himself and the staff. At present, it is functioning in a room situated in the petition schedule building. He is not in possession of any other vacant room, which is suitable for the proposed purpose, in the very same building. But, the RCR.377 & 378 of 2016 :3: tenant has another room, in his possession, in the building owned by one Abdul Rehiman and the same is sufficient for his business. 4. On the aforesaid contentions, the trial court went to trial and after trial, allowed the petitions partly, on the findings referred above. In the appeals, the appellate court reversed the said findings on the reason that the landlord has three other buildings in his possession; i.e. one is a new block constructed in the same premises, another is a building complex by name “Syamala Memorial Building” and the third one is a multi-storied building, which is being constructed at a place 200 Metres away from the petition schedule buildings. In view of the ownership and possession of the aforesaid building, the appellate court has arrived at a finding that he can accommodate his office in any of the other buildings referred above, without getting an order of eviction against the tenant. 5. As regards the comparative hardship, the court RCR.377 & 378 of 2016 :4: below found that the Rent Control Court went wrong by discarding Ext.B3 Building Tax Assessment Register of the local authority and further found that it has come out in evidence that the landlord has vacant rooms in his possession in other building; but the tenant has no other building in his possession. So the comparative hardship under the first proviso to Section 11(10) stands in favour of the tenant. 6. Heard the learned counsel for the revision petitioner and the learned counsel appearing for the respondent. 7. Going by the impugned judgment passed by the Appellate Authority, we find that the Appellate Authority has gone beyond the limit of statutory mandate under Section 11(8) of the Act. It has come out in evidence and stands admitted by both the courts below that at present the landlord is occupying a part of the building in which the petition schedule building is situated. The questions to be RCR.377 & 378 of 2016 :5: considered are; (1) What is the scope and extent of enquiry under Section 11(8) of the Act? (2) Where the landlord is occupying a part of the building in which the petition schedule building is situated, whether the availability of other vacant room, in his possession, in any other building would negative his claim under Section 11(8) of the Act. 8. On a comparative analysis of the different provisions of Section 11 of the Act, under which the landlord can apply for an order of eviction, we find that each provision is intended to meet different situations, where the landlord requires vacant possession of the tenanted premises. Therefore, each provision must be interpreted in view of the situation or circumstance under which the landlord seeks an order of eviction. The scope and extent of enquiry and consideration thereunder must be confined to that situation or circumstance only and nothing more than that. 9. What is intended under section 11(8) of the Act is a RCR.377 & 378 of 2016 :6: situation where the landlord requires additional accommodation in the very same building, for expansion of his existing business or any personal use. So the scope and extent of enquiry under Section 11(8) of the Act must be confined to the availability of vacant space or rooms, other than the petition schedule rooms, in the same building and not beyond it. The availability of vacant room or space in other building, even if that building is situated in the very same premises or near premises is of no consequence at all as it would not satisfy the need for additional accommodation in the same building. In short, the landlord requires additional accommodation in the same building itself and nowhere else. So it cannot be dictated that he must adjust himself, by shifting his entire business to the other building wherein vacant space or rooms are available, in his possession, to meet his additional requirements. 10. In the instant case, the courts below reversed the findings of the Rent Control Court on a finding that the RCR.377 & 378 of 2016 :7: landlord has vacant rooms in his possession in three other building complexes. Admittedly, a building complex having 99 rooms is being constructed 200 metres away from the petition schedule building. Similarly, another building, by name “Syamala Memorial Building Complex” and a new block are also situated in the same premises. But they are also different and separate buildings. Therefore, we are of the opinion that even though the landlord has three other building complexes, the availability of rooms in those building complexes cannot be considered while conducting an enquiry under Section 11(8) of the Act. In other words, the scope of enquiry is confined to the very same building in which the room in occupation of the landlord and the room in occupation of the tenant are situated. 11. Coming to this point, in evidence, it could be seen that the only available evidence in this respect is a commission report and the appellate court also specifically observed that, in Ext.C1 report, the commissioner had not reported the availability of any vacant room or space in the RCR.377 & 378 of 2016 :8: same building in which the petition schedule room and the landlord's office are situated. Needless to say, the burden is on the tenant to show that the landlord has in his possession other vacant space or room, in his possession, in the very same building. The only available evidence produced by the tenant is Ext.B3 extract with respect to the petition schedule building in the Building Tax Assessment Register. The Rent Control Court found that the entries in the said Register cannot be taken as a conclusive proof to prove the occupancy and possession of the buildings. We are of the opinion that the findings of the Rent Control Court is justified by the decision of this Court in **Indian Saree House v. Radhalakshmy [2006 (3) KLT 129]** . In this decision, this Court has considered the evidenciary value of the entries in the Building Tax Assessment Register and found that the same cannot be relied on as a conclusive proof to show occupancy of the building, as unless the landlord reports the vacant possession of the building to the RCR.377 & 378 of 2016 :9: local authority no entry could be made to that effect in the Register. But, the Appellate Authority went wrong by relying on Ext.B3 and arrived at a finding that the landlord has other vacant rooms in his possession in the very same building so as to accommodate his additional requirements. In the above analysis, we find that the Rent Control Court is justified in finding that the additional requirement of the landlord is a bona fide need. 12. Coming to the comparative hardship, we find that, here also, the Appellate Authority has placed reliance on the availability of rooms in the other three building complexes. We are of the opinion that even if vacant rooms are available in the possession of landlord in other buildings, the landlord cannot be compelled to shift his entire office to one of those buildings, as the additional accommodation is required for expanding the existing occupation/business in the same building only. It is to be remembered that such a shifting of entire RCR.377 & 378 of 2016 :10: occupation/business of the landlord to another building may adversely affect his occupation/business prospects and development and it may be the compelling circumstance for seeking an order of eviction under Section 11(8) of the Act. So, availability of other vacant room in other buildings is of no consequence at all, while considering comparative hardship under the 1[st] proviso to Section 11(10) of the Act also. 13. Similarly, it has come out in evidence that the tenant has been in occupation of another room in the building owned by one Abdul Rehman. In the Rent Control Petitions, the landlord has specifically stated that he is in occupation of another shop room in the building of the said Abdul Rehman. So, if an order of eviction is passed, he will not be put to any hardship. The tenant's occupation in the building owned by Abdul Rehman has come out in evidence. In that view, we find that the Rent Control Court is justified in finding that the hardship that may be caused to the RCR.377 & 378 of 2016 :11: tenant, if an order of eviction is passed, would not outweigh the advantage to the landlord. In view of the above analysis, we set aside the impugned judgment passed by the Appellate Authority and the order passed by the Rent Control Court will stand restored to the files. The Rent Control Revisions are disposed of accordingly. 14. Having regard to the entire facts and circumstances of the case, the respondent/tenant is given eight months' time from today to vacate the petition schedule building, on the following conditions: (1). The respondent/tenant shall file an affidavit, within two weeks from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, expressing an undertaking that he will vacate the petition schedule shop room within eight months from today. (2). The respondent/tenant shall deposit entire arrears, if any, within one month, before the Execution Court or the Rent Control Court, as the case may be, and shall continue to pay rent without RCR.377 & 378 of 2016 :12: ## default. (3). In the event of failure to comply with any of the conditions stated above, the time granted to vacate the premises will stand automatically vacated and the petitioner/landlord will be at liberty to proceed with the execution of the eviction order. Sd/K.HARILAL, Judge. Sd/- P.SOMARAJAN, Judge. okb.