Mahendran @ Chandran v. Mob Arts Club and Library

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 21ST JULY 2010 / 30TH ASHADHA 1932 RCRev..No. 200 of 2010 ---------------------------RCA.31/2005 of ADDL. RENT CONTROL APPELLATE AUTHORITY-I, TRIVANDRUM RCP.87/2003 of ADDL. MUNSIFF COURT (R.C.C), TVM .................... ## REV.PETITIONER/APPELLANT/COUNTER PETITIONER MAHENDRAN @ CHANDRAN, S/O.PERUMAL, PROPRIETOR, SREEKRISHNA AUTO ELECTRIC WORKS, T.C. 5/2412, KOWDIAR, THIRUVANANTHAPURAM. BY ADV. SRI.S.BALACHANDRAN (KULASEKHARAM) SRI.SASTHAMANGALAM S. AJITHKUMAR ## RESPONDENT(S): RESPONDENT/PETITIONER MOB ARTS CLUB AND LIBRARY, KOWDIAR, THIRUVANANTHAPURAM. 35 REPRESENTED BY ITS SECRETARY THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 21/07/2010,THE COURT ON THE SAME DAY PASSED THE PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. -----------------------------------------------R. C. R. No.200 of 2010 -----------------------------------------------Dated this the 21[st] day of July, 2010 ## **ORDER** ## _Pius C. Kuriakose, J_ The tenant being aggrieved by the judgment of the Appellate Authority allowing the RCA filed by him in part only and confirming the order of eviction granted in favour of the landlord under Sub Section 7 of Section 11 is in revision. The parties will be referred to as the tenant and landlord. The landlord is a charitable society registered under Act 12 of 1955. The landlord sought to evict the tenant invoking the grounds of arrears of rent under Section 11(2)(b); bona fide need for own occupation under Section 11(3); the R. C. R. No.200 of 2010 -2- need for additional accommodation for personal use under Section 11(8); and the ground that the tenant has acquired possession of other buildings reasonably sufficient for the tenant's requirement in the same city, town or village. Subsequently, the additional ground under Section 11(7) was also invoked. The bona fides of the need was disputed by the tenant who is conducting a battery workshop in the petition schedule premises which is actually the lean-to portion of the main building in which the landlord namely Mob Arts Club and Library is housed. It is urged by the landlord in the context of the grounds under sub Sections 3, 7 and 8 of the Act was that for accommodating the general reading room of the library and office room, the club is R. C. R. No.200 of 2010 -3- experiencing shortage of space and hence, it has been decided to effect proper constructions on the existing structure and also at the site of the petition schedule building (the lean-to portion). It is averred that building permit and licence from the local authority has been obtained; that the landlord club is possessed of necessary wherewithal for carrying out the proposal and that once the proposal is implemented, the landlord will be able to make convenient use of the existing premises as well as the site of the petition schedule premises. The Rent Control Court enquired into the matter and at trial evidence consisted of Exts.A1 to A11, B1 to B6, C1 Commission Report, oral evidence of PWs.1 to 3 and CPW1. That court on appreciating the R. C. R. No.200 of 2010 -4- evidence would order eviction on all grounds other than the grounds of arrears of rent and additional accommodation. The tenant alone filed RCA.31/05. Under the impugned judgment the above RCA has been allowed substantially and order of eviction has been confirmed only on the ground under sub Section 7 of Section 11. 2. In this revision under Section 20 the judgment of the Appellate Authority is assailed on various grounds and Sri.S.Balachandran Kulasekharam, the learned counsel for the revision petitioner addressed arguments on the basis of all the grounds. Sri.Balachandran submitted that there is no independent consideration regarding the bona fides or otherwise of the need of the landlord/Club under R. C. R. No.200 of 2010 -5- Section 11(7) by the Appellate Authority. Drawing our attention to the judgment of the Supreme Court in Shantilal Kesharmal Gandhi v. Prabhakar Balakrishna Mahanubhav (2007(2) SCC 619) the counsel submitted that as a first Appellate Court, the Rent Control Appellate Authority had a duty to make a proper re-appraisal of the pleadings and evidence and come into independent conclusions in affirmation or variations of the findings entered by the first Court. The above duty according to Sri.Balachandran has not been discharged by the Appellate Authority. Drawing our attention to judgment of this Court in Social Service Guild of Assissi Sisters v. Ouseph Chacko (2009(2) KLT 199) which was authored by ourselves Sri.Balachandran submitted that this Court has R. C. R. No.200 of 2010 -6- held that even in a case under Section 11(7), the landlord is bound to establish his bona fides though the standards for establishing such bona fides may be liberal than even the standards requisite for a case under sub Section 8 of Section 11. We were taken by the learned counsel extensively through the judgment of the Rent Control Appellate Authority and the learned counsel submitted that there is no independent appreciation of evidence by the Appellate Authority and much less independent conclusions regarding the crucial aspects. Counsel submitted that if as a matter of fact there was an element of bona fides in the need projected by the landlord/ Club they could have constructed another floor over the main building, lean-to of which only is R. C. R. No.200 of 2010 -7- the petition schedule building. The main building being RCC structure construction of another floor would have been much more advantageous to the landlord. But the insistence of the landlord that the revision petitioner shall vacate demonstrates that the landlord is actuated by oblique motives. 3. Sri.Balachandran would then submit that though in the Rent Control Appeal the order passed under Section 11(4)(iii) was also under challenge, the correctness of that eviction order has not been independently considered by the learned Appellate Authority. He submitted that presently, the respondent/landlord is levying execution of the order of eviction passed under Section 11(4)(iii) also and this is causing considerable prejudice to the revision petitioner. R. C. R. No.200 of 2010 -8- 4. We have very anxiously considered the submissions of Sri.Balachandran in the light of the judicial precedents cited before us by the learned counsel. We will at once notice some merit in the submission of Sri.Balachandran that the learned Appellate Authority has not discharged its appellate functions under Section 18 of Act 2 of 1965 to the extent the same pertains to the correctness of the order of eviction passed under Section 11(4)(iii). But we find that though there is no consideration at all in the impugned judgment regarding the ground under Sections 11(4)(iii) what the Appellate Authority has ultimately done is to confine the order of eviction to the ground under Section 11(7) only which means that by necessary implication the orders of eviction which R. C. R. No.200 of 2010 -9- had been passed by the Rent Control Court on grounds under Section 11(3), 11(4)(iii) and 11(8) stands vacated by the Appellate Authority. The operative portion of the judgment of the Appellate Authority gives sufficient support to the above view of ours. If the respondent/landlord is even now levying execution of the order of eviction passed against the revision petitioner on grounds other than Section 11(7) we permit the revision petitioner to move the Rent Control Appellate Authority by appropriate application for review or appropriate clarification regarding the eviction order passed under Section 11(3), 11(8) and Section 11(4)(iii). 5. On going through the grounds raised in the RCR we find that what is challenged R. C. R. No.200 of 2010 -10- specifically is the order of eviction passed under Section 11(7) only. We will therefore examine the illegality, irregularity or impropriety if any about the order of eviction passed under Section 11(7). 6. The submission of Sri.Balachandran that the learned Appellate Authority was totally unmindful of the bona fides or otherwise of the need projected under Section 11(7) cannot be accepted. True, there is no elaborate discussion in the Appellate Authority's judgment regarding the bona fides of the claim under Section 11(7). But we notice that the learned Appellate Authority has noticing sub Section 10 of Section 11 practically found that just because the word 'bona fide' is absent in Section 11(7) it cannot be said that there is no duty for the landlord to establish bona R. C. R. No.200 of 2010 -11- fides as 11(7) is qualified by Section 11(10). Elaborating on the above aspect further, the learned Appellate Authority has found that when a religious, charitable, educational or other public institution seeks eviction under Section 11(7) what is required to be established is only the religious, charitable, educational or public nature of the institution and that the building in question is needed for the purpose of the institution. It was found obviously by re-appreciating the evidence which was elaborately discussed by the Rent Control Court in the context of Section 11(3) and Section 11(8) that the landlord is a charitable/ educational/public institution registered under T.C. Act 12 of 1955 and that it was admitted by the tenant himself that the landlord has a library R. C. R. No.200 of 2010 -12- and reading room which is subscribing to at least three newspapers for the benefit of those who visit the library and the reading room. The Appellate Authority has held that as the need advanced is for occupation by the institution which includes the members and visitors of the institution, the need is eminently bona fide. Thus, though not in so many words it has been found that the need is bona fide. We do not think that the mandates of the judgment of the Supreme Court in Shantilal Kesharmal Gandhi v. Prabhakar Balakrishna Mahanubhav (cited supra) have been ignored by the learned Appellate Authority nor do we think that the mandates in our own judgment in Social Service Guild of Assissi Sisters v Ouseph Chacko (cited supra) were ignored by the R. C. R. No.200 of 2010 -13- Appellate Authority. The Appellate Authority it is noticed, has actually adopted the finding which was entered by the Rent Control Court in the context of Section 11(3) and Section 11(8) regarding the bona fides of the need though eviction order passed under those sub Sections were vacated, on the view that the apposite ground which applies is Section 11(7). That being so, we are unable to accept the argument of Sri.Balachandran that the impugned judgment is vitiated due to non-consideration of the vital aspect of bona fides of the need under Section 11 (7). It is fairly trite by decisions including in our own judgment in Social Service Guild of Assissi Sisters v. Ouseph Chacko (cited supra) that the standards for establishing bona fides in a case R. C. R. No.200 of 2010 -14- under Section 11(7) are liberal even than the liberal standards requisite for a case under Section 11(8) which in comparison to the standards expected in a case under Section 11(3) are liberal. 7. The submission of Sri.Balachandran that the endeavour of the landlord is to evict the revision petitioner who are in occupation of the lean to portion of the existing RCC building rather than putting up of first floor is indicative of absence of bona fides, does not appeal to us. We find that the proposal of the landlord is to develop the existing building also and it is as part of that proposal that the lean to portion is sought to be evicted and we also notice that the only circumstance which was highlighted before the R. C. R. No.200 of 2010 -15- statutory authorities to show that the need is not bona fide, was the alleged wrongful disconnection of electricity supply to the petition schedule premise on a previous occasion. Statutory authorities have rightly found that the above instance does not militate against the bona fides of the need presently projected. We in fact enquired of Mr.Balachandran as to whether his client entertains an apprehension that after evicting them, the building in question will be disposed of without using the same for the needs proposed. His answer was in the negative but he submitted that bona fides of the need projected should be considered on the basis of the other items of circumstantial evidence available in the case rather than on the basis of any post eviction R. C. R. No.200 of 2010 -16- conduct by the landlord. 8. In short, we do not find any illegality, irregularity or infirmity about the order of eviction passed under Section 11(7) under the impugned judgment. The impugned judgment is confirmed and the RCR is dismissed. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/-