George Thomas v. T.N. Menon & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 30TH SEPTEMBER 2010 / 8TH ASWINA 1932 RCRev..No. 203 of 2010() -----------------------(RCA NO.103/2008 OF THE RENT CONTROL APPELLATE AUTHORITY, ERNAKULAM. RCP NO.45/2007 OF THE RENT CONTROL COURT, ERNAKULAM) ## PETITIONER/APPELLANT/RESPONDENT --------------------------------------------------- GEORGE THOMAS, AGED 48 YEARS, S/O.THOMAS, 39/1978, GEORGEE COMBINES, THOTTEKKAT BUILDING, CHITTOOR ROAD, KOCHI-16, RESIDING AT VALIYAPARAMBIL, B-19, HIG APARTMENTS, GANDHI NAGAR, KOCHI-20. BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE RESPONDENT(S):/RESPONDENTS/ PETITIONERS -------------------------- 1. SHRI.T.N.MENON, AGED 56 YEARS, S/O.NEELAKANTA KARTHA, CHIEF AUDITOR, ICRUSAT, A UNITED NATIONS ORGANISATION NOW RESIDING AT 204, SMR SARTAJ PLAZA, SIKH ROAD, SECUNDARABAD-500 009. 2. SMT.NALINI VENUGOPALA MENON, 63 YEARS, W/O.LATE VENUGOPALA MENON, RESIDING AT KANAKKU VEEDU, NENMARA VILLAGE, CHITTOOR TALUK, PALAKKAD DISTRICT-678 508. 3. SMT.T.JAYASREE, 52 YEARS, D/O.NEELAKANTA KARTHA, NOW RESIDING AT 204, SMR SARTAJ PLAZA, SIKH ROAD, SECUNDARABAD - 500 009. 4. MRS.ANITHA JAYASANKAR, 42 YEARS, W/O.B.JAYASANKAR, NOW RESIDING AT THORANATHIL, VIVEK NAGAR, KOCHUKADAVANTHRA, KOCHI-682 020. SRI.P.VISWANATHAN THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 04/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ. -----------------------R.C.R.No. 203 OF 2010 ------------------------** Dated this the 4[th] day of November, 2010 ## **O R D E R** ## Gopinathan , J. The revision petitioner is the respondent/tenant in the RCP No. 45/2007 on the file of the Rent Control Court, Ernakulam. The respondents herein, who are landlords of the revision petitioner, instituted the above petition seeking an order of eviction in respect of the petition schedule building under Section 11(3) and 11(4)(iv) of the Kerala Buildings (Lease & Rent Control) Act (hereinafter referred to as 'the Act'). As per the pleadings in the petition and by the judgment impugned, it is revealed that a building facing east towards the Chittur Road is owned by the respondents. A portion in the upstairs, which is the petition schedule building was let out to the revision petitioner and he had been occupying the same as a lessee. On the southern side of the petition schedule building and towards the back side, the respondents own about 27 cents of land. The respondents bonafide planned for constructing a RCR No.203/2010 2 multi stored building in that property. As per the plan prepared, separate entry and exit are provided to the proposed building. Entry is through the southern side and the exit is through the northern side. To provide the exit, a portion of the petition schedule building covering the staircase is to be demolished, for which the revision petitioner is to be evicted. With these pleadings, the respondents approached the Rent Control Court seeking order of eviction under section 11(3) and 11 (4)(iv) of the Act. 2. The revision petitioner in his objection contended that he is doing business in electrical and electronics goods in the petition schedule building and the income thereon is the only source for his livelihood and that no suitable building is available in the locality to shift and that even without demolition of the petition schedule building, the respondents could provide ingress and egress to the proposed building and that the eviction sought is without any bonafides and prayed for dismissal of the petition. 3. During the course of enquiry, on the side of the respondents, PWs 1 and 2 were examined. On the side of the RCR No.203/2010 3 revision petitioner, RWs 1 to 3 were examined. Exts.A1 to A7 were marked on the side of the respondents. Exts.B1 to B3 were marked on the side of the revision petitioner. Ext.A7 is the approved plan of the proposed building. During the time of argument, on behalf of the respondents, the learned counsel submitted that he was not pressing the claim for eviction under Section 11 (4)(iv) of the Act. It was duly endorsed on the petition on 3/6/2008. The rent control court, on appraisal of the evidence, arrived at a finding that the respondents are entitled to an order of eviction under section 11(3) of the Act as they had established the bonafide need. Accordingly, eviction was granted by allowing the petition in part. 4. Though the revision petitioner preferred an appeal as RCA No.103/2008 before the appellate authority, Ernakulam, he was not successful. Assailing the legality, correctness and propriety of the judgment in appeal confirming eviction under section 11 (3), this revision petition was filed under Section 20 of the Act. 5. We heard Sri.K.Ramakumar, learned senior counsel appearing for the revision petitioner as well as RCR No.203/2010 4 Sri.P.Viswanathan, learned counsel appearing for the respondents and perused the impugned judgment, order of the Rent Controller and the records. We notice that the building proposed to be constructed as per Ext.P7 is a multi storied building having 11 stories. It is admitted from the Bar that the building proposed is a commercial-cum-residential complex. The design of the ground floor, the first floor and second floor of the proposed building is as commercial complex. Rest of the floors are residential apartments. There is no whisper in the pleadings or in the evidence that the whole commercial building complex is for the own occupation of the respondents. The learned counsel appearing for the respondents fairly conceded that a major portion of the commercial complex is for letting. Of the residential apartments, according to the learned counsel for the respondents, 40% is set apart for the respondents and 60% is for the builders, as it is a joint venture. Whatever may be understanding between the respondents and the builders, now it remains a fact that at least some portions of the commercial complex are for letting to outsiders. That being the facts, we find that the case on hand would not come under Section 11(3) RCR No.203/2010 5 of the Act because Section 11(3) stipulates eviction when the building is bona fide needed for the occupation of the landlord or for his dependents as it is or after reconstruction. A reading of Section 11(3) would be relevant for correct appraisal. “Section 11(3); A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building if he **bona fide** needs the building for his own occupation or for the occupation by any member of his family dependent on him;” (Provisos are omitted as not relevant) 6. Going by the wordings in section 11(3), a landlord can seek eviction under this ground only for the occupation of the landlord or a dependent family member. It has been settled by precedents that in case the landlord proposes own occupation after reconstruction, then also he can seek eviction under section 11(3). But if the own occupation is only in respect of a portion of the reconstructed building and remaining portions are intended for lease, eviction has to be sought under section 11(4) (iv) and not under section 11(3). That is the intention of the 6 RCR No.203/2010 legislature discernible by the provisos to section 11 (4)(iv). For a correct appraisal of the facts and law, a reading of section 11 (4)(iv) with its provisos would be relevant. Section 11(4)(iv) reads; “Section 11 (4)(iv): If the building is in such a condition that it needs reconstruction and if the landlord requires **bona fide** to reconstruct the same and if he satisfies the Court that he has the plan and licence, if any required, and the ability to rebuild and if the proposal is not made as a pretext for eviction: Provided that the landlord who evicts a tenant and does not reconstruct completely the building within a time which may be fixed or extended by the rent Control Court, shall on a petition before that Court be liable to a fine of rupees five hundred, if it is proved that he has wilfully neglected to reconstruct completely the building within such time: Provided further that the Court shall RCR No.203/2010 7 have power at any time to issue directions regarding the reconstruction of the building and on failure of compliance by the landlord, to give effect to the order in any manner the Court deems fit and in appropriate cases to put the tenant back in possession or award to the evicted tenant damages equal to the excess rent he has to pay for another building that he is occupying in consequence of such eviction : Provided further that the tenant who was evicted shall have the first option to have the reconstructed building allotted to him with liability to pay its fair rent; or “ 7. On a comparative reading of Sections 11(3) and 11 (4)(iv), we find that to entitle eviction under section 11 (3), there shall be bonafide need for own occupation of the landlord or for the occupation by any members of his family dependent on him. To entitle eviction under section 11 (4)(iv), there need only bona fide requirement for reconstruction. Bona fide occupation RCR No.203/2010 8 can also be after reconstruction. But, if the landlord has no intention to occupy the entire reconstructed area, the eviction has to be sought under section 11(4)(iv). Legislative intention discernible from the above provisions is that after reconstruction in the event there is space available for lease the evicted tenant has got the first option, of course with liability to pay fair rent. In the proposed construction as per Ext.A7, as mentioned earlier, there is space available for letting. In that event, we find that the respondents are entitled to get an order of eviction only under Section 11 (4)(iv) and not under Section 11(3). 8. The authorities below failed to note that in the proposed building there is commercial complex intended for letting out and the revision petitioner who is to be evicted for providing an exit for the proposed building could be very well rehabilitated under the 3[rd] proviso to section 11 (4)(iv). Since the eviction sought was not for occupation of the respondents after reconstruction as a whole, we find that Section 11(3) is not the proper provision to seek eviction in this case. In other words, since the portions of the proposed building is designed RCR No.203/2010 9 as commercial complex for letting it out, the respondents are entitled to get an order of eviction only under Section 11(4)(iv) and not under Section 11 (3). Since the authorities below had granted eviction under section 11 (3), the very valuable right of the tenant for reinduction was taken away for no good reason. In this way, justice was denied to the revision petitioner. 9. Going by the order and judgment of the authorities below, we find that the authorities below had given reliance to the decisions reported in Sarada & others v. M.K. Kumaran (1969 KLT 133), Krishnamenon v. District Judge (1988 (1) KLT 131), Narayan kutty v. Abiida Abdul Kareem (2002 (2) KLT 507), Kunjamma v. Akkali Purushothaman (2007 (3) KLT 599 (SC), Parvathi Krishnan v. Joseph Alias Jose (2007 (4) KLT 1062) to grant eviction under section 11(3). 10. The excerpts in the appellate judgment would reveal that what the authorities below had considered is whether the need to reconstruct is bona fide or not. Regarding the bona fides to construct a new building, we find no reason to doubt. It is submitted from the Bar that the construction is fast progressing. The authorities below were serious in searching the RCR No.203/2010 10 precedents to see whether an eviction can be granted under section 11 (3) in a case where the purpose is for making a pathway to a new building. It is in that search, the precedents were relied on. While searching so, the authorities below failed to consider the fact that the proposed building has got commercial complex for letting out. We also notice that in the decision reported in George Varghese v. Ammini Cherian (1995 (2) KLT 763) the petition was filed seeking eviction under sections 11(3) and 11 (4)(v). In that case, this court held that the reconstruction was proposed for own occupation and in that circumstances, it need not further go into the question whether there is any necessity to consider the grounds sought under section 11 (4)(iv). Going by Section 11(3) of the Act and the precedents referred, we find that the conversion of the revised building into a pathway for the use of the landlord to the newly constructed building is also a need coming under Section 11(3) of the Act. But, the issue on hand is different because the proposed building as a whole is not for occupation by the landlord or his dependents. Landlord intends for a new set of tenants. That means the tenant revision petitioner has to sacrifice for RCR No.203/2010 11 another set of tenants in addition to the need of the landlord. In such circumstance, imbibing the spirit and purport of the Act, we find that the revision petitioner is entitled to first option in the commercial complex of the proposed building as stipulated by the third proviso to section 11(4)(iv). 11. In RCR No. 284/2009, almost a similar issue had come before us. In that case eviction was sought under Section 11 (2) (b), 11 (3) and 11 (4)(iv). The Tribunal allowed the petition on all the three grounds. In appeal the appellate authority found that since the plea of the landlord was for own occupation after reconstruction, eviction order should have been under Section 11 (3). Consequently, while confirming eviction under Section 11(3), order of eviction under section 11 (4)(iv) was set aside. In revision, we noticed that the proposed construction was more than the need of the landlord and there was portions for letting it out. Taking note of that aspects, by our order dated 11/10/2010, we found that the tenant revision petitioner therein is entitled to the benefit of the 3[rd] proviso under Section 11 (4). Accordingly, we modified the order of eviction. In this case, to conclude we find that though the construction of RCR No.203/2010 12 another building is a bonafide need of the respondents and the petition schedule building is sought to be demolished to provide exit for the proposed building and thereby eviction sought can be styled as one for reconstruction, the respondents have no need to occupy the entire reconstructed building. Such being the factual background, the respondents are entitled to seek an order of eviction only under section 11 (4)(iv) and not under Section 11 (3). Therefore, the eviction orders under Section 11 (3) is not sustainable and liable to be set aside. But we find that the respondents, who did not pursue eviction under Section 11 (4)(iv) and pursued eviction order only under section 11(3) are to be non suited. Having due regard to the pleadings, evidence and the facts of the case, we find that it would be just and appropriate to set aside the order of eviction under section 11 (3) and convert it as an order of eviction under section 11 (4)(iv). By resorting to such procedure, the revision petitioner would no way be prejudiced as he faced the enquiry with pleadings for eviction under section 11 (4)(iv) and evidence was also adduced with that pleadings and he would get the benefit of the third proviso to section 11 (4)(iv). RCR No.203/2010 13 In the result, revision petition is allowed in part. The impugned order under Section 11(3) is substituted by an order of eviction under Section 11 (4)(iv) of the Act. The revision petitioner is entitled to the benefit of the 3[rd] proviso to section 1(4)(iv). The learned counsel for the respondents fairly submitted that the eviction of the revision petitioners is required only at the final stage of construction and before executing the order of eviction, the revision petitioner would be rehabilitated in the newly constructed building as per the 3[rd] proviso to section 11 (4)(iv). While recording the above submission, we make it clear that the revision petitioner would be liable to pay the fair rent. There will be no order as to costs. ## **PIUS C.KURIAKOSE,JUDGE** **P.S.GOPINATHAN, JUDGE** dpk