Kumaran v. Preman

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 11TH OCTOBER 2010 / 19TH ASWINA 1932 RCRev..No. 45 of 2009() ----------------------RCA.11/2006 OF RENT CONTROL APPELLATE AUTHORITY, PALAKKAD RCP.13/2003 OF RENT CONTROL COURT,PATTAMBI .................... REVISION PETITIONER/RESPONDENT/RESPONDENT ------------------------------------------------------------- KUMARAN, S/O.PARAMBANAKATH THAMU, KUMARANELLUR AMSOM,VELLALUR DESOM,OTTAPALAM TALUK. BY ADV. SRI.P.K.MOHANAN(PALAKKAD) SRI.C.DILIP RESPONDENT(S): APPELLANT/PETITIONER ----------------------------------- PREMAN,S/O.THOTTUPADATH NEELAN, KUMARANELLUR AMSOM,AMETTIKKARA DESOM,OTTAPALAM TALUK. ADV. SRI.M.PREMCHAND FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 11/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **PIUS C. KURIAKOSE & P.S.GOPINATHAN, JJ.** ----------------------------------------------- RCR. No. 45 of 2009 ----------------------------------------------Dated this the 11[th] day of October, 2010 ## **O R D E R** ## **Pius C.Kuriakose, J.** The tenant is in revision and he challenges the judgment of the Rent Control Appellate Authority ordering eviction against him on the ground of bona fide need for own occupation under Section 11(3). The landlord had invoked the ground of arrears of rent under Section 11(2) (b) and reconstruction under Section 11(4)(iv) also. There was dispute between the parties as to what is the rate of rent. The landlord contended that the rate of rent is Rs.10/per day, while the tenant contended that the same is only Rs.8/- per day. The Rent Control Court accepted the tenant's case that the rate of rent is Rs.8/- per day and found that rent at that rate had been paid by the tenant. Based on that finding the Rent Control Court turned down the plea for eviction on the ground of arrears of rent. As RCR. 45/09 -2- regards the ground under section 11(4)(iv) the Rent Control Court found that virtually the claim was that the building was needed bona fide for own occupation after reconstruction and hence the need was one under section 11(3) and not under Section 11(4)(iv) also. It was found by the Rent Control Court on appreciating the evidence that need projected by the landlord was bona fide. However, on examining the question whether the tenant is entitled for the protection of the second proviso to sub-section (3) of section 11 the court would find that the landlord had not adduced sufficient evidence to show that the tenant was not entitled for the protection of the second proviso to Section 11(3). On that basis it was held that the tenant was entitled for protection of the second proviso. Accordingly, eviction was declined on the ground under section 11(3) also. The tenant did not prefer any appeal against the finding of the Rent Control Court that the need under Section 11(3) was RCR. 45/09 -3- bona fide. However, the finding was challenged by the tenant in the appeal that was preferred by the landlord. The Rent Control Appellate Authority appreciated the pleadings and the evidence. The Appellate Authority would confirm the decision of the Rent Control Court in the context of the ground under Section 11(2)(b). That court also confirmed that on the facts which obtained in this case, the case was to be treated as one under Section 11(3) only. Even though it was argued before the Appellate Authority by the tenant that the need was not bona fide, the Appellate Authority was not persuaded to hold that the need was not bona fide. The Appellate Authority went on to examine on the question whether the tenant is entitled for the protection of second proviso. Appellate Authority noticed that the burden of proof in the context of second proviso to Section 11(3) had been wrongly cast by the Rent Control Court. The Appellate Authority held that the burden was on the tenant RCR. 45/09 -4- to show that he satisfied both the ingredients of the second proviso. On examining the evidence it was held by the Appellate Authority that the tenant was successful in showing that he satisfies the first ingredient of the second proviso as the evidence was to the effect that the tenant is depending for his livelihood only on the tea shop business that is being conducted in the schedule building. However, coming to the second limb, the Appellate Authority noticed that there was an Advocate Commissioner's report, which was to the effect that at a distance of 100 metres from the petition schedule building there was buildings available on lease. It was also noticed that the tenant had not adduced any cogent evidence to show that other buildings are not available in the locality for him to shift his business. Accordingly, it was held that the second ingredient of the second proviso to sub-section (3) of Section 11 was not satisfied by the tenant. As the second ingredient was found RCR. 45/09 -5- to be not established it was held that the tenant was unsuccessful in showing that he is entitled for the protection of the second proviso. 2. In this revision under Section 20 various grounds are raised by the tenant assailing the judgment of the Appellate Authority. Sri.P.K.Mohanan, learned counsel for the revision petitioner addressed very serious and persuasive arguments before us assailing the judgment of the Appellate Authority. Mr. Mohanan submitted that subsequent to the judgment of the Rent Control Appellate Authority the revision petitioner applied under the R.T.I. Act and he has now been informed that the landlord owns as many as nine buildings in the same ward in the same Panchayat. According to him, the landlord had a duty to disclose the availability of these buildings. Having not discharged that duty, the rent control petition is liable for rejection. To support the above argument he placed before us the original of certificate RCR. 45/09 -6- dated 6-10-2009 issued to the petitioner by the Kapoor Grama Panchayat. We notice that the above certificate is issued about 10 months after the judgment was delivered by the Appellate Authority. We don't think even if the certificate was on record in the case, the same would have been of much assistance to the petitioner. The certificate is only to the effect that with effect from 31-12-2003 the landlord has come to acquire ownership over nine rooms in the same Panchayat. The RCP is instituted in the year 2003. There is nothing in the certificate to show that these rooms have ever come to the vacant possession of the landlord. At any rate, the landlord cannot be blamed for not having disclosed about the availability of these rooms under his ownership or possession in a rent control petition which he instituted much prior to 31-12-2003. It is significant to note that the tenant did not raise any contention that even though the statement of objections were filed by the tenant RCR. 45/09 -7- raising various contentions it was never contended that the RCP is liable to fail by virtue of the first proviso to Section 11(3). We find that one contention which was seriously agitated before the Rent Control Appellate Authority was the claim of the tenant for protection of the second proviso. As already indicated, the Rent Control Court upheld that contention assuming that the burden of proof regarding that contention is on the landlord. Having regard to the judgment of a Division Bench of this Court in Francis v. Sreedevi Varassiar, 2003 (2) KLT 230 (F.B) the Appellate Authority was right in taking the view that burden was on the tenant. The Appellate Authority rightly found on the basis of the evidence that the tenant has succeeded in showing that he satisfies the first ingredient of the second proviso. But it is trite that both the ingredients are in the conjunctive and unless both the ingredients are satisfied the tenant will not be entitled for protection of the second RCR. 45/09 -8- proviso. Coming to the second ingredient, there was the Advocate Commissioner's report which clearly show that other vacant buildings are available at a distance of 100 metres from the petition schedule building. It was found also correctly that the tenant did not adduce any evidence to show that other buildings are not available in the locality. We don't find any infirmity with the above findings of the Appellate Authority. 3. However, we notice another aspect of the matter. It has been pleaded by the landlord in paragraphs 7 and 8 of the Rent Control Petition that apart from occupying a portion of the new building to be constructed for his own purpose the landlord will let out one or two rooms in the new building so that he will get an additional income for his sustenance. 4. We enquired of Sri.M.Premchand, learned counsel for the respondent/landlord as to difficulty, if any for RCR. 45/09 -9- accommodating the revision petitioner in one of the rooms in the building after reconstruction. His answer was that in the Rent Control Petition itself, the landlord has expressed his willingness to do that. It appears to us that it was in view of the judgment of this court in George Varghese v. Ammini Cherian (1952 (2) KLT 763) that the learned Appellate Authority chose to order eviction only on the ground under sub section (3) of Section 11 despite averments in paragraph 8 of the Rent Control Petition. George Varghese v. Ammini Cherian was a case where the need projected by the landlord was to occupy the whole of the reconstructed building for own occupation. It was in that context that the Division Bench of this Court held that when such is the need projected by the landlord, even if the landlord has invoked the grounds under sub section (3) of Section 11 and clause (iv) of Sub Section (4) of Section 11 simultaneously once it is found that the need of the landlord -10- RCR. 45/09 for own occupation of the re-constructed building is bona fide the Rent Control Court can stop the enquiry and need not enquire into the grantability of an order of eviction under Section 11(4)(iv) also. But, there may be several cases where the landlord invokes the grounds under sub section (3) of Section 11 and Section 11 (4)(iii) simultaneously projecting a case that the landlord needs to occupy only a portion of the reconstructed building. In such cases, the Rent Control Court will have to consider the statutory right of the tenants who were evicted on the ground of reconstruction under Section 11 (4)(iv) for reinduction under the 3[rd] proviso to section 11 (4)(iv). We notice that the present one is such a case . Hence, even as we confirm the order of eviction passed by the Rent Control Appellate Authority, we order eviction also on the ground under Section 11 (4)(iv) and direct the respondent/landlord to re-induct the revision petitioner into one of the rooms in RCR. 45/09 -11- a reconstructed building having carpet area not less than 200 sq. feet subject to his liability to pay fair rent to the respondent. The RCR is allowed to the above extent. Parties will suffer their respective costs. **(PIUS C.KURIAKOSE, JUDGE)** **(P.S. GOPINATHAN, JUDGE)** ksv/dpk-