George s/o Akkarakaran Vareed v. Shaju and Biju

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 20TH DAY OF SEPTEMBER 2012/29TH BHADRA 1934 ## **RCRev..No. 302 of 2012 (A)** RCA.82/2004 OF RENT CONTROL APPELLATE AUTHORITY, IRINJALAKUDA RCP.NO.33/2003 OF THE RENT CONTGROL COURT, IRINJALAKUDA ## **REVISION PETITIONER/APPELLANT** /IST RESPONDENT: GEORGE S/O.AKKARAKARAN VAREED, THEKKE ANGADI, IRINJALAKUDA THRISSUR DISTRICT. BY ADV. SRI.K.G.BALASUBRAMANIAN ## **RESPONDENTS/RESPONDENTS 1 AND 2/** PETITIONERS: ## 1. SHAJU S/O.BRAMMAKULATH THANISSERYKKARAN JOSEPH PREMIER PRESS, MAIN ROAD, NADA IRINJALAKUDA-680 121, THRISSUR DISTRICT. ## 2. BIJU -DO- RESPONDENTS BY ADV. SRI.RENJITH THAMPAN (SR.) ADV. SRI.V.M.KRISHNAKUMAR(CAVEATOR) THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 20-09-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **I.A.NO.2051/2012 IN R.C.R.NO.302/2012** DISMISSED SD/- **K.T.SANKARAN, JUDGE** 20/09/2012 SD/- **M.L.JOSEPH FRANCIS, JUDGE** //TRUE COPY// AHZ/ ## **K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ.** **---------------------------------------------------R.C.R. NO. 302 OF 2012 A ---------------------------------------------------Dated this the 20[th] day of September, 2012** ## **O R D E R** ## **K.T.Sankaran, J.** The respondents filed R.C.P.No.33 of 2003 on the file of the Rent Control Court, Irinjalakuda against the petitioner and others under Sections 11(2)(b), 11(3) and 11(8) of the Kerala Buildings (Lease and Rent Control) Act. Hereinafter the parties are referred to as the landlords and tenants. 2. The landlords stated that the tenants failed to pay the rent and that the building is required for the bona fide use of the landlords. It was also contended by the landlords that the petition schedule building is necessary for the additional accommodation of the landlords. In the main building, the landlords are doing business in stationery, books and other items. The landlords contended that the space occupied by the landlords is not sufficient for stocking the items, displaying them, receiving customers and for the smooth ## **R.C.R. NO. 302 OF 2012 A** :: 2 :: conduct of the business. The tenants are conducting business in textiles in the petition schedule room for the last several years. 3. The Rent Control Court allowed the petition under Sections 11(2)(b) and 11(3) of the Act. The Rent Control Court thought that since the bona fide need under Section 11(3) is established and an order was passed in favour of the landlords, it was not necessary to consider the claim of the landlords under Section 11(8) of the Act. 4. Challenging the order passed by the Rent Control Court, one of the tenants (first respondent in the Rent Control Petition) filed R.C.A.No.82 of 2004 and the landlords filed R.C.A.No.85 of 2004 before the Rent Control Appellate Authority, Irinjalakuda. The Appellate Authority dismissed both the appeals. Challenging the judgment of the Appellate Authority, one of the tenants (first respondent in the Rent Control Petition) filed R.C.R.No.164 of 2010 and the landlords filed R.C.R.No.194 of 2010. Both these Rent Control Revisions were heard by a Division Bench of this Court and a common order dated 16.7.2010 was passed. For the sake of convenience, paragraphs 8 and 9 of the order dated 16.7.2010 are extracted below: ## **R.C.R. NO. 302 OF 2012 A** :: 3 :: “8. Now the question is whether the need projected in the RCP which as we have already noticed is one for additional accommodation for personal use namely the use of conducting the ongoing business of books and stationery in a proper and convenient manner is a bona fide one. It is trite by decisions of this Court that the standards for establishing bona fides in a case under sub-section 8 of Section 11 are not so stringent as the standards are in a case under sub Section 3 of Section 11. Applying the liberal standards applicable to sub section 8 of Section 11, we find it very easy to concur with the Rent Control Court which actually held that the need for additional accommodation is bona fide. 9. The question which now arises is whether the proviso to sub Section 10 of Section 11 will apply. Even though Smt.Anitha, the learned counsel for the landlord made very persuasive submissions before us requesting that we decide that issue finally, we are not inclined to do so. We notice that the decision of the Rent Control Court in the context of the proviso to sub Section 10 of Section 11 was in favour of the tenant. The Appellate Authority did not examine the correctness of that decision. We find force in the submissions of Sri.K.G.Balasubramanian that the tenant has a right to ## **R.C.R. NO. 302 OF 2012 A** :: 4 :: have the correctness of that decision examined by the statutory appellate authority with powers to enter findings on facts rather than by this Court sitting in revisional jurisdiction. We are therefore of the view that the issue as to whether the Rent Control Petition is liable to fail by virtue of proviso to sub Section 10 of Section 11 should be decided first by the learned Appellate Authority. We therefore, are inclined to relegate the matter to the Rent Control Appellate Authority. If necessary, the Appellate Authority will permit both parties to adduce further evidence on that issue. Unlike the second proviso to sub Section 3 of Section 11 both sides have burden - the landlord has the burden to prove as to what are the advantages which they gain and the tenant has the burden to prove as to the extent of hardship which he will sustain.” 5. After remand, PWs.1 to 3 and RW1 were examined before the Rent Control Appellate Authority. PW1 and RW1 are respectively the landlord and tenant. It is submitted that PW2 is the Secretary of a panchayat examined on the side of the tenant to prove that the landlords conduct business in the neighbouring Panchayat and in the same Municipality limits as well. PW3 is the Advocate Commissioner who was appointed in O.S.No.1387 of 2010 filed by the landlords against the tenants after this Court remanded ## **R.C.R. NO. 302 OF 2012 A** :: 5 :: the case to the Appellate Authority. The report submitted by that Commissioner was marked as Ext.A5. The reports submitted by the Commissioner appointed by the Rent Control Appellate Authority were marked as Exts.C1 to C3. 6. The Appellate Authority held that the hardship that would be caused to the tenants by allowing the Rent Control Petition would not outweigh the advantage to the landlords in case the Rent Control Petition is allowed. In other words, the Appellate Authority held that the comparative hardship would be in favour of the landlords and not in favour of the tenants. Challenging the judgment of the Appellate Authority, one of the tenants filed the present Rent Control Revision. 7. After remand of the case to the Appellate Authority, the landlords filed O.S.No.1387 of 2010 before the Court of the Munsiff of Irinjalakuda against the tenants for an injunction restraining the tenants from altering the nature of the petition schedule building or from causing destruction to the petition schedule building. In that suit, an emergent exparte commissioner was appointed, who inspected the petition schedule building and also the residential building of the tenants. The report submitted by that Commissioner ## **R.C.R. NO. 302 OF 2012 A** :: 6 :: was marked as Ext.A5 in the Rent Control Proceedings after remand by the High Court. It is submitted by the learned counsel appearing for the tenants that the tenants entered appearance in the suit and filed an application to set aside the report filed by the Commissioner in that suit. But before the Court could consider the application, the landlords/plaintiffs got the suit dismissed as not pressed. It is submitted that even if that Commissioner is examined in the Rent Control Proceedings, the report submitted by him in the suit could not have been relied on by the Rent Control Appellate Authority. The counsel submitted that the correctness or otherwise of the Commission report filed in the suit was not tested by the civil court and the defendants/tenants did not get an opportunity to put forward their contentions in the suit touching upon the acceptability or otherwise of the report. We find considerable force in the submission made by the learned counsel appearing for the tenants. The Appellate Authority relied on Ext.A5 report submitted by the Commissioner to arrive at a finding that apart from the textile business that is being carried on by the tenants in the petition schedule building, the revision petitioner is conducting tailoring business at his residence. For the reasons stated above, we are not ## **R.C.R. NO. 302 OF 2012 A** :: 7 :: placing any reliance on Ext.A5 and the evidence of PW3, the Commissioner appointed in O.S.No.1387 of 2010. 8. The evidence adduced by the revision petitioner/tenant as RW1 before the Appellate Authority was gone into by us. RW1 stated in evidence that for the last about 25 years, he is conducting textile business in the petition schedule building. He stated in cross examination that after deducting the expenses he would get a monthly profit of `3,000/-. Thereafter, the tenant voluntarily added and stated in evidence that he would get `15,000/- per month as profit. He also stated that the turnover in the textile business would be around `4.75 lakhs. He stated that Sales Tax and KVAT Registration are not required since the turnover is less than Rupees Five lakhs. The evidence of the tenant would indicate that the profit margin would be 15% to 20% of the turnover. If the evidence of the tenant as such is taken, the monthly income which would be derived by him from the business would not be `15,000/- per month, but would be somewhere around `7,000/- or `7,500/-. The evidence of the tenant would show that he has not disclosed the true state of affairs before Court. ## **R.C.R. NO. 302 OF 2012 A** :: 8 :: 9. The revision petitioner/tenant also stated that he has not inspected the premises occupied by the landlords and he does not know the requirements of the landlords. To the pointed question as to what are all required for the landlords to smoothly conduct the business for which the additional accommodation is sought for, the tenant stated that he does not know as he has not inspected the premises. The tenant also stated in evidence that he does not know whether other buildings are available in the locality. The court below relied on the Commissioner's report to arrive at the finding that other suitable buildings are available in the locality to accommodate the business run by the tenant in the petition schedule building. It is well settled in **Jose** v. **Antony** (2005 (1) KLT 252) that the burden is on the tenant to establish the hardship that may be caused to him if he is evicted from the tenanted premises and the landlord has to discharge his burden to show the advantage that he would derive if he gets the premises vacated. Naturally, shifting of the business would cause inconvenience to the tenant and such inconvenience cannot be termed as “hardship” under the first proviso to Section 11(10) of the Act. The Division Bench also held in **Jose** ## **R.C.R. NO. 302 OF 2012 A** :: 9 :: v. **Antony** (2005 (1) KLT 252) that the Rent Control Court has to balance both and determine whether the hardship which may be caused to the tenant would outweigh the advantage derived by the landlord. 10. The landlord has adduced evidence in the case. The evidence of the landlord would disclose the following facts: On the western side of the petition schedule building, the landlords are conducting business in text books, note books, office stationery, etc. and photo framing and photocopying business. On the northern side of the building, the second petitioner (landlord) is conducting the business of offset printing works and DTP. There is no sufficient space in the building in the possession of the landlords to display the articles or for accommodating the photocopying machine in such a way so that the customers would be attracted. If the area occupied by the tenants is also available for the landlords for accommodation, they would be able to display the articles and photocopying machine and other gadgets in an attractive manner which would attract the customers. Several articles are kept on the rear side of the building and on the up-stair portion of the building and the same could be more effectively displayed to the convenience of the customers. ## **R.C.R. NO. 302 OF 2012 A** :: 10 :: There is no space to provide seats for the customers. The tenants are not having much business in the petition schedule building. The revision petitioner/tenant is also doing tailoring business at his residence. There are other buildings available in the locality sufficient enough to accommodate the business run by the revision petitioner/tenant. The three daughters of the revision petitioner/tenant were well married and two of them are working abroad. No difficulty would be caused to the revision petitioner/tenant if he vacates the petition schedule building. The landlords also stated in evidence that one room which was in the occupation of the landlords on tenancy arrangement with a stranger was subsequently vacated as the landlord of that building demanded for vacating the same. Therefore, it is stated by the landlords that the need which is now available is more than the need which is projected in the Rent Control Petition. 11. The Appellate Authority considered the evidence of the landlord and the tenant and all the other materials and arrived at a finding of fact that the hardship that would be caused to the tenant by vacating the petition schedule building would not outweigh the advantage that would be derived by the landlords if they get ## **R.C.R. NO. 302 OF 2012 A** :: 11 :: additional accommodation as sought for in the Rent control Petition. Though we are not inclined to agree with the Appellate Authority in accepting Ext.A5 Commissioner's report and the evidence of the commissioner appointed in O.S.No.1387 of 2010, the finding arrived at by the Appellate Authority could be justified on the basis of the materials available in the case other than Ext.A5 and the Commissioner's evidence. We concur with the view taken by the Appellate Authority. No grounds are made out for interference under Section 20 of the Kerala Buildings (Lease and Rent Control) Act. 12. For the aforesaid reasons, the Rent Control Revision is dismissed. Lastly, the learned counsel for the revision petitioner/tenant submitted that the tenant may be granted a reasonable time to vacate the petition schedule building. The learned senior counsel appearing for the landlords submitted that taking into account the facts of the case, a reasonable time can be granted to the tenant to vacate the building. In the facts and circumstances, we are of the view that the revision petitioner/tenant can be granted time till 31.5.2013 to vacate the petition schedule building. Accordingly, the ## **R.C.R. NO. 302 OF 2012 A** :: 12 :: revision petitioner/tenant is granted time till 31.5.2013 to vacate the petition schedule building, on condition that the tenant shall pay the monthly rent at the rate of `4,000/- till he vacates the premises and also on condition that the revision petitioner/tenant shall file an unconditional undertaking, within a period of two months, before the Rent Control Court, undertaking to vacate the premises on or before 31.5.2013. **(K.T.SANKARAN) Judge** **(M.L.JOSEPH FRANCIS) Judge** ahz/