Kaniyattayil Safiya v. P.V. Sreedharan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU** **THURSDAY, THE 16TH DAY OF NOVEMBER 2017/25TH KARTHIKA, 1939** **RCRev..No. 212 of 2016 () --------------------------** **AGAINST THE ORDER/JUDGMENT IN RCA 198/2014 OF THE RENT CONTROL APPELLATE AUTHORITY,THALASSERY DATED 29-02-2016** **AGAINST THE ORDER/JUDGMENT IN RCP 20/2013 OF THE RENT CONTROL (MUNSIFF) COURT, KUTHUPARAMBA DATED 26-09-2014** **REVISION PETITIONER(S)/REVISION PETITIONER/APPELLANT/PETITIONER: ---------------------------------------------------------------** **KANIYATTAYIL SAFIYA** **W/O. POIL MUHAMMED, BAITHUL FIFA, PUTHUSSERRY, PERAVOOR, MANATHANA AMSOM, PERAVOOR DESOM, THALASSERY, KANNUR DISTRICT.** ## **BY ADV. SRI.MOHAN C.MENON** **RESPONDENT(S)/RESPONDENT/RESPONDENT/RESPONDENT:** **-----------------------------------------------** **P.V.SREEDHARAN S/O. KANNAN NAIR, PUTHANVEETTIL HOUSE, PERAVOOR THERU, P.O.PARAVOOR, MANATHANA AMSOM, PERAVOOR DESOM, KANNUR DISTRICT-670673.** **R1 BY ADV. SRI.ABU MATHEW R1 BY ADV. SRI.AJU MATHEW R1 BY ADV. SRI.ABHILASH MATHOOR** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 16-11-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **RCR NO.212 OF 2016** ## **APPENDIX** ## **PETITIONERS ANNEXURES** **ANNEXURE 1- TRUE COPY OF I.A.IN RCA 198/2014 DATED 16.10.2015 ON THE FILE OF RENT CONTROL APPELLATE AUTHORITY, THALASSERY** **ANNEXURE 11- TRUE COPY OF COUNTER DATED 21.10.2015 FILED BY THE TENANT IN I.A. 2062/2015 IN RCA 198/2014** **ANNEXURE III- TRUE PHOTOCOPY OF PHOTOGRAPH OF THE PETITION SCHEDULE ROOM AND THE BACK ROOM** ## **RESPONDENTS ANNEXURES** ## **NIL** **TRUE COPY** **SKS** **P.A TO JUDGE** **K.HARILAL & A.M.BABU, JJ. .......................................... RCR No 212 of 2016 ........................................... Dated 16[th] November, 2017** ## **ORDER** ## **K.HARILAL, J.** The revision petitioner filed RCP 20/2013 under Sec.11 (2) (b) and 11 (3) of the Kerala Buildings (Lease and Rent Control) Act before the Rent Control Court, Kuthuparamba claiming an order of eviction. According to the petitioner, she bona fide needs the petition schedule shop room for starting a stationery shop for her husband. Her husband was working abroad and now he has returned and he wants to start a business to eke out livelihood for his family. No other convenient vacant room is in possession of the petitioner and her husband. But several other vacant rooms are available in the locality for shifting the business of the respondent from the tenanted premises. 2. The respondent resisted the claim for eviction under Sec.11 (3) contending that the need projected is not bona fide. Further it is contended that the petitioner has other building in her possession in Peravoor town for 2 RCR No 212 of 2016 conducting the proposed business. Further, he claimed protection under the second proviso to Sec.11 (3) of the Act on the ground that he is mainly depending on the income from the tenanted premises and other vacant buildings are not available in the locality. 3. Both parties adduced evidence on the aforesaid contentions and after considering the evidence on record, the Rent Control Court rejected the application on a finding that the claim for eviction under Sec.11 (3) is hit by the first proviso to Sec.11 (3). But, further found that the need projected in the petition is bona fide and the respondent is not entitled to get protection under the second proviso to Sec.11 (3). Though, the petitioner has preferred an appeal, the appellate authority also confirmed the aforesaid finding as such and rejected the appeal. Thus, the concurrent findings of the courts below under the first proviso to Sec.11 (3) of the Act rejecting the rent control petition have come up in this revision for examining its legality and propriety. 4. Heard the learned counsel for the revision petitioner and the learned counsel for the respondent. 3 RCR No 212 of 2016 5. The sole question to be considered is whether there is any illegality or impropriety in the concurrent findings of the courts below that the claim under Sec.11 (3) of the Act is hit by the first proviso to Sec.11 (3). It is the case of the petitioner that she has no other convenient vacant room in her possession for starting the proposed business. The respondent in the counter statement contended that the petitioner has other vacant buildings in the same town. But, in the counter statement the respondent has not disclosed or specific identity of the vacant room which is said to be in the possession of the petitioner. When the petitioner's husband was examined as PW1 no question was put to him suggesting the availability of a particular vacant room in their possession. But in the chief affidavit filed by the respondent he has stated that room bearing no.512K which is situated in Peravoor Panchayat adjacent to the petition schedule building is available in the possession of the petitioner. On the same day itself the respondent filed an application to summon the Panchayat Secretary, Peravoor Panchayat and to produce the building tax assessment register 4 RCR No 212 of 2016 relating to the petitioner's shop room. The Panchayat Secretary was examined as RW2 and the building tax assessment register maintained in respect of the room having no.512K marked as Ext X1. In Ext X1 the column for occupation of the tenant was found lying blank. When RW2 was examined he specifically stated that he had seen the said room as laying vacant and there was no business in that building. It is on the basis of Ext X1 that the Rent Control Court found that the petitioner is not entitled to get the order of eviction as there is a bar under the first proviso to Sec.11 (3) of the Act. In appeal, the petitioner has filed I.A.No.2062/2015 in RCA 198/2014 seeking an order to appoint a Commission to ascertain the suitability and occupancy possession of the room covered under Ext X1. But the appellate authority dismissed the said I.A on a finding that the petitioner can very well induct a third person by this time and so there is no relevancy, if at all the Commissioner reports that somebody occupied the room. 6. We find that the findings of the courts below that the rent control petition is hit by the first proviso to 5 RCR No 212 of 2016 Sec.11 (3) of the Act solely rests upon Ext X1, the copy of the building tax assessment register and the evidence given by Panchayat, the Secretary of the Panchayat, on the basis of Ext X1. This Court in **2001 (2) KLT 263 (Varghese Eapen vs. Varghese)** held that “the mere fact that the register of the Accommodation Controller does not show that there was no vacant building does not immediately mean that the tenant's case has to be accepted”. 7. We are also of the view that the occupancy position shown in the building tax assessment register cannot be taken as a conclusive proof to prove the occupancy position of the building because, unless and until the landlord reports the change in occupancy position, no change will be made in the building tax assessment register. So the building tax assessment register may not show the actual current occupancy position. That apart, the landlord specifically contended that Room No.512K, which is said to have been laying vacant has no road frontage. If the said shop room has no road frontage, it cannot be equated with the petition 6 RCR No 212 of 2016 schedule shop room. RW2 also deposed that Room No.512K has no road frontage and it is situated behind the petition schedule shop room. I.A No.2062/2015 was filed for ascertaining the lack of road frontage alleged by the petitioner also. Even though the actual occupancy position as on the date of rent control petition could not be ascertained by a commission appointed in the appeal, the alleged lack of road frontage could have been ascertained, had the appellate court allowed the I.A No.2062/2015 to that extent. In the above view, we find that the petitioner can be given an opportunity to adduce evidence on the special reason for not occupying the Room No.512K. 8. Consequently, the findings of the courts below under the first proviso to Sec.11 (3) of the Act alone will stand set aside and the concurrent findings in favour of the petitioner/landlord on bona fide of the need and second proviso to Sec.11 (3) of the Act will stand confirmed. I.A.No.2062/2015 is allowed in part and remitted back to the Rent Control Court along with the Rent Control Petition for appointing a commission to 7 RCR No 212 of 2016 ascertain the matter whether Room No.512K has road frontage or not only. Since the present occupancy position has no relevance, the prayer to ascertain the present occupancy position is disallowed. But, the parties are allowed to adduce any further evidence if any, on the first proviso to Sec.11 (3) of the Act only to prove their contentions in this respect as on the date of Rent Control Petition. The Rent Control Petition is remitted back to the rent control court. The Rent Control Court shall pass final order on the Rent Control Petition on the basis of the fresh findings to be arrived at on the first proviso to Sec.11 (3) of the Act, within a period of three months from the date of receipt of the copy of this order. This Rent Control Revision is disposed of as above. sd/- **K.HARILAL Judge** sd/- **A.M.BABU Judge** sks/17.11.2017