K. ARUMUGHAM PILLAI and others v. HAJA HUSSAIN and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE P.UBAID WEDNESDAY, THE 29TH DAY OF JANUARY 2014/9TH MAGHA, 1935 ## **RCRev..No. 331 of 2013 (A)** AGAINST THE JUDGMENT IN RCA.NO.11/2008 OF THE ADDITIONAL RENT CONTROL APPELLATE AUTHORITY I, THIRUVANANTHAPURAM DATED 27.3.2013 AGAINST THE ORDER IN RCP.NO.85/2004 OF THE RENT CONTROL COURT, THIRUVANANTHAPURAM. ## **REVISION PETITIONERS/APPELLANTS 2, 4 AND 5/ CR.PETITIONERS 4, 6 & 7:** 1. K. ARUMUGHAM PILLAI - TC.25/3658, ALUMMOOTTUVILAKOM VEEDU, PULIMOODU, THIRUVANANTHAPURAM. 2. K S JALAJAMBAL, W/O.K.PARAMESWARAN PILLAI, T C 25/3658, ALUMMOOTTUVILAKOM VEEDU, PULIMOODU, THIRUVANANTHAPURAM. 3. J SINDHU, D/O.JALAJAMBAL, T C 25/3658, ALUMMOOTTUVILAKOM VEEDU, PULIMOODU, THIRUVANANTHAPURAM. BY ADVS. SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.MANU V. SRI.GOVIND PADMANAABHAN ## **RESPONDENTS/RESPONDENTS & 3RD APPELLANT/ PETITIONER & CR.PETITIONERS 2, 6 TO 10:** 1. HAJA HUSSAIN, TC 42/24, G H S LANE, MANACAUD THIRUVANANTHAPURAM, PROPRIETOR, GULF GOLD RAJADHANI BUILDINGS, FORT, THIRUVANANTHAPURAM. 2. K NAGAPPAN PILLAI, T C 25/3658, ALUMMOOTTUVILAKOM VEEDU, PULIMOODU THIRUVANANTHAPURAM. 3. VASANTHA, T C,25/3658 ALUMMOOTTUVILAKOM VEEDU, PULIMOODU, THIRUVANANTHAPURAM 4. JAYANTHI T.C., 25/3658, ALUMMOOTTUVILAKOM VEEDU, PULIMOODU, THIRUVANANTHAPURAM. 5. S NAGARATHNAM, DOOR NO 92-9 OB COLONY, MERUTHAMALA ROAD, COIMBATORE-641 046. :: 2 :: ## **RCRev..No. 331 of 2013 (A)** 6. B. N. ASHADEVI, DOOR.NO.92-9 OB COLONY, MERUTHAMALA ROAD, COIMBATORE-641 046. 7. B.N.SAROJINI DEVI, DOOR NO 92-9 OB COLONY, MERUTHAMALA ROAD, COIMBATORE-641 046. 8. P MANOJ, T C 25/3658, ALUMOOTTUVILAKOM VEEDU, PULIMOODU, THIRUVANANTHAPURAM. 9. K SANTHOSH KUMAR, TC 25/3658, ALUMMOOTTUVILAKOM VEEDU, PULIMOODU THIRUVANANTHAPURAM- R1 BY ADV. SRI.J.HARIKUMAR THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 29-1-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **I.A.NO.2379/2013 IN R.C.R.NO.331/2013** DISMISSED SD/- **K.T.SANKARAN, JUDGE** 29/01/2014 SD/- **P.UBAID, JUDGE** //TRUE COPY// AHZ/ ## **K.T.SANKARAN & P.UBAID, JJ.** **---------------------------------------------------R.C.R. NO. 331 OF 2013 A ---------------------------------------------------Dated this the 29[th] day of January, 2014** ## **O R D E R** ## **K.T.Sankaran, J.** In this Rent Control Revision, the fourth respondent and the legal representatives of the second respondent in R.C.P.No.85 of 2004 on the file of the Rent Control Court, Thiruvananthapuram, who were also some of the appellants in R.C.A.No.11 of 2008 on the file of the Rent Control Appellate Authority, Thiruvananthapuram, challenge the concurrent findings of the Rent Control Court and the Rent Control Appellate Authority. The Rent Control Petition was filed under Section 11(3) and 11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act'). The Rent Control Court ordered eviction under Section 11(3), but rejected the relief under Section 11(4)(v) of the Act. The Appellate Authority confirmed the order passed by the Rent Control Court. Though Section 11(4)(iv) of the Act was mentioned in the Rent Control Petition that was only to contend that the building should be ## **R.C.R. NO. 331 OF 2013 A** :: 2 :: reconstructed before occupation by the landlord for the need put forward by him. Therefore, the case need not be considered on the parameters of Section 11(4)(iv) of the Act. 2. According to the landlord, the building was let out on a monthly rent of `100/- on 1.11.1997. The landlord contended that he runs three business concerns, wholesale and retail, in Thiruvananthapuram city limits. The landlord contended that he wants to reconstruct the petition schedule building and to accommodate all the three business establishments under one roof in the reconstructed building. The landlord also contended that the tenants ceased to occupy the building continuously for a period of more than six months and therefore he sought eviction under Section 11(4)(v) of the Act as well. The tenants contended that the building was let out on rent by Govinda Pillai to Kolappan Pillai, the predecessor in interest of the revision petitioners in 1115 M.E. (corresponding to 1940). According to the tenants, they are entitled to the benefit of Section 11(17) of the Act and, therefore, they are not liable to be evicted for bona fide occupation of the landlord or for occupation of any member of his family dependent on him. The ## **R.C.R. NO. 331 OF 2013 A** :: 3 :: tenants also contended that the bona fide need set up by the landlord is not genuine. In the objection to the Rent Control Petition, the tenants also stated thus: “7. The averments contained in paragraph 5 of the Petition are denied as being false. The Petition scheduled building, is situated, at Pulimood (GPO) Junction, and it forms a portion of an island like piece of land, have an extent of about 50 cents. The said island like portion, is bounded on all its sides, by the Ambujavilasom Road, G.P.O.Lane, and the Tank Road. The town planning and other authorities, have not permitted development of the said property, all these years, and no licence or permission for construction has been granted to any one to develop any portion of the said island like piece of land. This island has remained in the same condition, for more than fifty years, without any new construction being permitted therein.” It is admitted in the objection that the petition scheduled building is an old tiled residential building, portion of which has tin roof. The tenants also contended that the existing building cannot be used for any commercial activity and no reconstruction is possible since no permission will be granted for the same. It is an admitted case that the respondents were residing in the building. ## **R.C.R. NO. 331 OF 2013 A** :: 4 :: 3. The tenants contended that Govinda Pillai transferred the property to Madhavan Nair and it was subsequently purchased by Haja Hussain, the present landlord. Madhavan Nair filed R.C.P.No.179 of 1980 under Sections 11(2)(b) and 11(3) of the Act. As per Ext.B4 order, that Rent Control Petition was allowed under Section 11(2)(b), but it was dismissed under Section 11(3) of the Act. The tenants also contended that Madhavan Nair filed R.C.P.No.14 of 1998 under Sections 11(3) and 11(4)(iv) of the Act, contending that the building was required for the bona fide occupation of his daughter to run a beauty parlour, after reconstructing the building. R.C.P.No.14 of 1998 was dismissed as per Ext.B5 order. Madhavan Nair filed R.C.A.No.27 of 1999 before the Appellate Authority. Pending that appeal, as per Ext.A1 sale deed, Madhavan Nair sold the property to Haja Hussain, the present landlord, on 3.2.2003. Haja Hussain got impleaded in the Rent Control Appeal. However, the Rent Control Appeal was dismissed for default as per Ext.B1 judgment dated 23.9.2004. The tenants contended that the present Rent Control Petition is hit by Section 15 of the Act. ## **R.C.R. NO. 331 OF 2013 A** :: 5 :: 4. The Rent Control Court considered the contention of the tenant that the Rent Control Petition is hit by Section 15, in paragraphs 7 and 8 of the order and held that the Rent Control Petition is not barred under Section 15 of the Act. It was held that R.C.A.No.27 of 1999 was dismissed, since the bona fide need put forward by Madhavan Nair in R.C.P.No.14 of 1998 (from which the Rent Control Appeal arose) did not survive after Haja Hussain purchased the property. The bona fide need put forward in R.C.P.No.14 of 1998 was that the daughter of the then landlord (Madhavan Nair) required the building for opening a beauty parlour. The need put forward ion R.C.P.No.14 of 1998 did not subsist after Haja Hussain purchased the property. The need put forward by Haja Hussain in the present Rent Control Petition is distinct and different. Therefore, it cannot be contended that the present Rent Control Petition is hit by Section 15 of the Act,since the need put forward in the present Rent Control Petition was not the subject matter of either R.C.P.Nos.14 of 1998 or 179 of 1980. 5. Section 15 of the Act provides that the Rent Control Court ## **R.C.R. NO. 331 OF 2013 A** :: 6 :: shall summarily reject any application under sub-sections (2), (3), (4), (5), (7) or subsection (8) of Section 11 which raises between the same parties or between parties under whom they or any of them claim substantially the same issues as have been finally decided or purports to have been finally decided in a former proceeding under the Act. The principles of res judicata are enunciated in Section 15 of the Act. On the facts mentioned above, the finding of the Rent Control Court on this point, as affirmed by the Appellate Authority, is legal and proper. 6. The contention put forward by the tenants that they are entitled to the protection under Section 11(17) of the Act was rejected by the Rent Control Court and it was confirmed by the Appellate Authority. Section 11(17) provides that notwithstanding anything contained in Section 11, a tenant who has been in continuous occupation of a building from 1.4.1940 as a tenant, shall not be liable to be evicted for bona fide occupation of the landlord or the occupation of any member of his family dependent on him. There is an exception to this, which is contained in the proviso but it is not relevant for the purpose of this case. Section 11(17) was ## **R.C.R. NO. 331 OF 2013 A** :: 7 :: interpreted by a Full Bench of this Court in **Narayanan** v. **Shalima** : **2003 (2) KLT 317(F.B.)** and it was held that the legal heirs of a deceased tenant are not entitled to the protection under Section 11 (17) of the Act. The Full Bench held that protection under Section 11 (17) must certainly be reckoned as a personal privilege or protection available to the tenant who has been in continuous occupation from 1.4.1940 and not to his successors. A Larger Bench, consisting of five Judges, in **Prabhakaran** v. **Sulaikabi** : **2007 (2) KLT 103 (F.B.) = 2007 (2) KHC 1** held that the heirs of a tenant who was in occupation of the building from 1.4.1940 are not entitled to the protection under Section 11(17) of the Act. The Full Bench decision in **Narayanan** v. **Shalima** : **2003 (2) KLT 317(F.B.)** was affirmed by the Larger Bench. 7. The Rent Control Court considered the case put forward by the tenants under Section 11(17), in paragraphs 9 to 12 of the order and held that, on facts, it is not established that Kolappan Pillai got the lease before 1.4.1940. It was also held that even if he had got the lease on or before 1.4.1940, in view of the decision of the Larger Bench in **Prabhakaran** v. **Sulaikabi** : **2007 (2) KLT 103(F.B.) = 2007** ## **R.C.R. NO. 331 OF 2013 A** :: 8 :: **(2) KHC 1** , the respondents in the Rent Control Petition (tenants) are not entitled to the benefit, they being the successors in interest of the original tenant. The Appellate Authority concurred with the decision of the Rent Control Court. The finding that the lease to Kolappan Pillai was not proved to be on or before 1.4.1940 was arrived at on the basis of the facts and evidence. Even the rent receipts produced by the tenants do not relate back to any date prior to 1.4.1940. The finding arrived at by the authorities below on facts do not warrant any interference under Section 20 of the Act. The authorities below were also right in holding that even if Kolappan Pillai had obtained lease prior to 1.4.1940, the respondents in the Rent Control Petition are not entitled to the benefit of Section 11(17) in the light of the Larger Bench decision in **Prabhakaran** v. **Sulaikabi** : **2007 (2) KLT 103(F.B.) = 2007 (2) KHC 1.** No interference is called for on this ground as well. 8. Another contention raised by the tenants is that the property in question comes under the M.G.Road DTP Scheme of Thiruvananthapuram. The Rent Control Court held thus: ## **R.C.R. NO. 331 OF 2013 A** :: 9 :: “14. ..... Admittedly the property of the plaintiff is comprised in Sy.No.1360 B and the same is not lying adjacent to the M.G.Road. Admittedly the above said plot is lying on the side of a by road and thus having no proximity to the M.G.Road. Moreover, from Ext.B11 it is only seen that there is a proposal regarding the acquisition. ..... “ 9. The Appellate Authority also concurred with the view taken by the Rent Control Court on this aspect. 10. The learned counsel for the revision petitioners relied on the Full Bench decision in **Francis** v. **Chalakudy Municipality** : **1999 (3) KLT 560 (F.B.)** , where it was held that the Scheme notified under Section 12 of the Town Planning Act, 1108 will not lapse if steps for acquisition were not taken within three years of the notification. The learned counsel submitted that since the DTP Scheme cannot be held to be not in existence, the landlord would not be entitled to construct any building in the property. The learned counsel appearing for the landlord submitted that in **Shivaprasad** v. **State of Kerala (2011 (1) KLT 690)** , a learned single Judge of this ## **R.C.R. NO. 331 OF 2013 A** :: 10 :: Court held that the various provisions of the Town Planning Act vary with the scheme of the Municipality Act and the Municipality Act, 1994 will prevail over them. The learned counsel also relied on the Division Bench decisions in **Giri** v. **State of Kerala** : **2013 KHC 2725 = 2013 (2) KLT 443** and in **Kalpetta Municipality** v. **M.Mohandas and others** : **2011(4) KHC 844** . In **Kalpetta Municipality** v. **M.Mohandas and others** : **2011(4) KHC 844,** it was held that there is nothing in the Land Acquisition Act or in any other law which prohibits the owner of a piece of land which is the subject matter of notification under Section 4 of the Land Acquisition Act from enjoying the property in any manner not prohibited by law including construction of a building thereon if it is otherwise permitted under law. In **Giri** v. **State of Kerala** : **2013 KHC 2725 = 2013 (2) KLT 443,** a Division Bench of this Court held that when there is no valid notification under the Land Acquisition Act, Section 393 of the Kerala Municipality Act cannot be invoked to reject the application for construction. 11. The learned counsel for the landlord also submitted that there is no evidence in the case to show that the land in question ## **R.C.R. NO. 331 OF 2013 A** **==> picture [38 x 9] intentionally omitted <==** comes under the DTP Scheme. It is not proved by the tenants that the land is abutting M.G.Road and that it comes under the Scheme. The tenants relied on Ext.B11 to contend that the land is included in the DTP Scheme. Ext.B11 is only a communication issued by the Public Information Officer which only shows that the land in Sy.No.1360, which abuts M.G.Road, is included in the M.G.Road DTP Scheme. It is not proved that the land in question abuts M.G.Road. The finding of the Rent Control Court is that it does not abut M.G.Road. 12. For the aforesaid reasons, we are not inclined to accept the contention put forward by the tenants that the landlord is not entitled to get an order of eviction under Section 11(3) on the ground that the land in question is included in the DTP Scheme. 13. The tenants contended that the landlord has three business establishments and it is preposterous to contend that all the three business establishments situated in different parts of the city are to be accommodated in a single building. The landlord contended that he is conducting different businesses, both in ## **R.C.R. NO. 331 OF 2013 A** :: 12 :: wholesale and retail, in different buildings in Thiruvananthapuram city and those buildings were taken on rent. He spends huge amounts for engaging staff for the management of the businesses at three different places. The landlord contended that if all the three businesses are brought under the same roof, he can easily manage the businesses and he can save huge rent. The overheads for running the three establishments can be reduced. The contention put forward by the landlord was accepted by the Rent Control Court and it was held that the bona fide need put forward by the landlord is genuine. The Rent Control Court noticed that even according to the version of CPW1 (one of the tenants), the petition schedule building is a very old and dilapidated one. It was held that Ext.A15 series photographs would also show that the petition schedule building is a very old and dilapidated one. It was held that Ext.A14 Commissioner's Report would also prove the same. The Rent Control Court noticed that the landlord has obtained an approved plan and a valid building permit from the Thiruvananthapuram City Corporation for construction of the proposed building in the petition schedule building (Ext.A8 and A9). Admittedly, the landlord is having financial capability to construct the building. Ext.A10 statement of ## **R.C.R. NO. 331 OF 2013 A** :: 13 :: bank account would also prove the same. We are of the view that on the admitted and proved facts, the Rent Control Court was justified in holding, and which was rightly confirmed by the Appellate Authority, that the landlord bona fide needs the building for own occupation as alleged, after reconstructing the old and dilapidated building situated in the petition schedule property. The order and judgment of the authorities below do not suffer from any illegality, irregularity or impropriety warranting interference under Section 20 of the Act. The Rent Control Revision is, accordingly, dismissed. **(K.T.SANKARAN) Judge** **(P.UBAID) Judge** ahz/