John Decruse v Kerala State Ex-Service League

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 13TH DAY OF MARCH 2020 / 23RD PHALGUNA, 1941** ## **RCRev..No.69 OF 2020** **AGAINST THE JUDGMENT IN RCA 190/2016 DATED 18-11-2019 OF THE RENT CONTROL APPELLATE AUTHORITY (DISTRICT COURT & SESSIONS COURT) THALASSERY** **AGAINST THE ORDER IN RCP 178/2007 DATED 26-10-2016 OF THE RENT CONTROL COURT (ADDITIONAL MUNSIFF COURT) KANNUR** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** **JOHN DECRUSE, AGED 57 YEARS S/O.THOMAS DECRUZ, RATION SHOP LICENSEE, BURNASSERY, KANNUR,** **BY ADV. SRI.CIBI THOMAS** ## **RESPONDENT/RESPONDENT/PETITIONER:** **KERALA STATE EX-SERVICE LEAGUE,** **KANNUR DISTRICT COMMITTEE, VIMUKTHA BHADA BHAVANAM, BURNASSERY DESOM OF KANNUR TALUK AND DISTRICT, KANNUR REPRESENTED BY ITS SECRETARY.** **R1 BY ADV. K.P.PRADEEP (CAVEATOR)** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 13.03.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RCRev..No.69 OF 2020** ..2.. ## **ORDER** ## **K. Harilal, J.** The revision petitioner herein is the tenant, who is confronting with an order of eviction passed against him, under Section 11(8) of the Kerala Buildings and (Lease and Rent Control) Act, 1965 (herein after referred to as ‘the Act’ for short) in R.C.P. No.178/2007 of the Rent Control Court, Thalassery, and confirmed by the Rent Control Appellate Authority, Thalassery in R.C.A.No.190/2016. (The parties are referred to as in the rent control petition). 2. The petitioner/landlord; Kerala State Ex-Service League, Kannur District, is a Society, registered under the Societies **RCRev..No.69 OF 2020** ..3.. Registration Act. The Society is represented by its Secretary. According to the averments in the rent control petition, the said society is constituted for the welfare of the Ex-service men, their widows and dependents, in Kerala. The office of the Society is running in the first floor of the petition schedule building. The respondent/ tenant is in possession of the ground floor portion of the petition schedule building, except the back side room. The respondent/ tenant is in occupation of the tenanted premises for conducting a ration shop, for a monthly rent @ Rs.660/-. According to the petitioner/landlord, thousands of Exservicemen in Kannur District, most of them are aged, are attending the office of the petitioner/landlord daily for various needs. The needs including the processing of **RCRev..No.69 OF 2020** ..4.. pension papers, getting various benefits from the Government and various Departments. Moreover, nearly 250 to 300 second world war veterans and widows, who are getting British Common Wealth Grant are doing periodical correspondence through the petitioner/ landlord. Most of them are aged between 75 and 90 years. They are not able to climb the ladder to enter the present office. Whenever those aged persons come, the officials and staff of the petitioner/ landlord has to come to the road to hear their grievance and to prepare necessary documents. During that time, they were standing either on the road or near the vehicle, in which they come. This process has to be repeated several times a day, when each person comes to the office of the petitioner/landlord. In addition to the **RCRev..No.69 OF 2020** ..5.. office of the Society, office of security agency is also being run by the petitioner/ landlord in the same room on the first floor. There is no sufficient space in the first floor to occupy its office, security agency, and to arrange sufficient seats to accommodate the veterans, who fought for the country. This caused great difficulty to the petitioner/landlord and the persons coming to the Society. The petitioner's plan is to shift the staff section to the ground floor, occupied by the respondent/tenant and to arrange sufficient seats to accommodate the age old persons there. The petitioner/ landlord has no other buildings of their own in their possession for the said purpose. The back side portion of the petition schedule building cannot be used for the said purpose, as there is no road access to **RCRev..No.69 OF 2020** ..6.. that portion and there is no entrance to the back side room from the main road. So, no vehicle can be taken in front of the back room. If the office is shifted to the tenanted premises, the first floor can be used for security agency. With the aforesaid averments, the petitioner/landlord prayed for passing an order Under Section 11(8) of the Act. Thus, the rooms in the possession of the petitioner/landlord are not sufficient to attend the problems of more than 7000 members of the organization. The respondent/tenant is constructing a two storied building very near to the petition schedule building. So, if an order of eviction is passed, that will not affect the business of the respondent/ tenant. 3. The respondent/tenant filed a counter statement, denying all the averments in the **RCRev..No.69 OF 2020** ..7.. rent control petition. According to him, the rent control petition itself is not maintainable u/s 11(8) of the Act as the averments would show that the eviction is sought for shifting the office room to the tenanted premises. According to him, in view of the averments in the rent control petition, the petitioner/landlord would have filed rent control petition under Section 11(3) of the Act. It is also contended that eviction is sought for demolishing the existing building and to construct a new building in that place for leasing out the rooms for higher rent to new tenants. The respondent/tenant is conducting a ration shop in the petition schedule building. The people living nearby belongs to socially deprived class and they are depending on the ration shop for their provisions. Therefore, **RCRev..No.69 OF 2020** ..8.. if an order of eviction is passed, that will adversely affect the interest of socially deprived persons living in that locality also. The hardship that may be caused to the respondent/tenant would outweigh the advantage of the petitioner/ landlord. With the aforesaid averments, the respondent/ tenant prayed for dismissing the rent control petition. 4. On the rival pleas, the petitioner/ landlord adduced evidence, both oral and documentary. PW1 to PW3 were examined and Exts.A1 to A2 were marked from the side of the petitioner/landlord. A commission report was marked as Ext.C1. No evidence, either oral or documentary was adduced by the respondent/tenant. 5. Having considered the evidence on record, the courts below concurrently found **RCRev..No.69 OF 2020** ..9.. that the need for additional accommodation is _bona fide_ and the hardship that may be caused to the respondent/tenant will not outweigh the advantage to the petitioner/landlord. The legality and correctness of the aforesaid findings are challenged in this revision petition. 6. Heard the learned counsel for the petitioner/landlord and the learned counsel for the respondent/tenant. 7. The sum and substance of the arguments advanced by Sri.Cibi Thomas, the learned counsel for the respondent/tenant is that, the rent control petition itself was not maintainable u/s 11(8) of Act. According to him, even though, the petition was filed under Section 11(8) of the Act, the evidence adduced by the Society would establish a ground under Section 11(3) of the Act only. **RCRev..No.69 OF 2020** ..10.. Since, Sections 11(8) and 11(3) of the Act are mutually exclusive and independent, the rent control petition was not maintainable. But, the court below concurrently went wrong and arrived at a finding that the pleadings and evidence would establish the ground under Section 11(8) of the Act. Thus, the concurrent findings of the courts below under Section 11(8) are perverse. 8. In order to substantiate the said contention, the learned counsel cited _**Lekshmana Naikan**_ v. _**Gopalakrishna Pillai [1981 KLT 167]**_ and _**Welfare Stationery**_ v. _**South Indian Bank Ltd. [2014(2) KLT 328]**_ . No other points has been raised in this revision petition. _9. Per contra_ , Sri.Pradeep, the learned counsel for the petitioner/landlord submits that the pleadings and evidence established **RCRev..No.69 OF 2020** ..11.. a ground under Section 11(8) of the Act and the courts below are justified in granting an order of eviction under Section 11(8) of the Act. The learned counsel drew our attention to the evidence of PW1 to PW3 and contended that their evidence would establish the grounds under Section 11(8) of the Act. 10. At the outset, it is to be borne in mind that the scope and extent of interference that the concurrent findings of the courts below are confined to legality, propriety and regularity of the findings of the courts below only. The revisional court is not permitted to re-appreciate the evidence and findings on factual dispute, unless the findings of the courts below are perverse. Even if two views are possible, the revisional court is not permitted to **RCRev..No.69 OF 2020** ..12.. take a different view other than the concurrent findings of the court below, unless the findings are so perverse and illegal. 11. Therefore, the question is to be considered in this revision petition is whether there is any illegality or impropriety in the findings of the courts below that the rent control petition is maintainable under Section 11(8) of the Act and the petitioner/landlord has pleaded and established the grounds under Section 11(8) of the Act. 12. Going by the concurrent findings, we find that it is a specific case of the petitioner/landlord that the office of the Society is functioning on the first floor of the tenanted building. In addition to that, the Society is running a security agency and **RCRev..No.69 OF 2020** ..13.. the office of the security agency is also functioning in the very same room on the first floor. Subsequently, in evidence, by the examination of PW3, it has been established that the petitioner/landlord has a women's wing of the spouses of the ExServicemen and there are 1200 members and 34 units in the said women's wing. According to the pleadings in the rent control petition, the Society has thousands of members and all the members are retired ExServicemen and they find it difficult to reach the first floor, as they are physically unable to climb the steps of the ladder. So, they want to shift the office of the Society only from the first floor to the tenanted premises, which is situated in the ground floor and they want to conduct a security agency and women's wing in the **RCRev..No.69 OF 2020** ..14.. first floor. Thus, it has come out in the pleadings and evidence that the petitioner/ landlord has no intention to keep the first floor vacant and they want to occupy the first floor also for housing the security agency and women's wing. Thus, the tenanted premises is also essentially and additionally required for the proper functioning of the Society. We are of the opinion that the aforesaid pleadings would disclose the statutory requirements u/s 11(8) of the Act and not 11(3) of the Act, as contended by the respondent. In order to prove the need of more space, for functioning of the society, the petitioner/ landlord has examined PW1 to PW3. PW 1 to PW3 have testified in terms of the dire need of more space for the whole activities of the Society including the functioning of the **RCRev..No.69 OF 2020** ..15.. security agency and the women's wing. 13. Put it differently, it has been established in pleadings and in evidence that the petitioner/landlord wants to retain the security agency and women's wing in the first floor and they want to shift the office of the society and the waiting lobby to the tenanted premises. Therefore, the need projected is not for completely shifting the office of the Society to the tenanted premises only and the need projected is to expand the area, so as to accommodate the entire activities of the Society in a more comfortable and convenient manner. In the above view, we find that the petitioner/landlord has succeeded in establishing the _bona fide_ need for additional accommodation, falling under Section 11(8) of the Act. Therefore, we **RCRev..No.69 OF 2020** ..16.. find that there is no or illegality impropriety in any of the findings, whereby the courts below concurrently found that the rent control petition is maintainable under Section 11(8) of the Act. 14. Having regard to the nature of the business, which is being conducted in the tenanted premises, the respondent/tenant is given two months' time 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 two months from today._ _(2) The respondent/tenant shall deposit the entire arrears, if any, within one month from the date of_ **RCRev..No.69 OF 2020** ..17.. _receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, and shall continue to pay the rent without 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._ Hence, this revision petition fails and is dismissed accordingly. **Sd/K.HARILAL JUDGE** SB/16/03/2020 **Sd/C.S.DIAS JUDGE** **// true copy //** **P.A to Judge**