Manikkoth Kollarath Ashokan v. Kizhakke Manjakkandi Haridasan

RCRev.102/2023 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **&** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. FRIDAY, THE 9[TH] DAY OF JUNE 2023 / 19TH JYAISHTA, 1945 RCREV. NO. 102 OF 2023** **RCP 218/2014 OF RENT CONTROL COURT/ADDITIONAL MUNSIFF COURT,** ## **KANNUR** **RCA 8/2020 OF RENT CONTROL APPELLATE AUTHORITY (DISTRICT JUDGE)** ## **THALASSERY** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** MANIKKOTH KOLLARATH ASHOKAN AGED 65 YEARS S/O. K.P. KUNHIRAMAN MASTER, MAHATMA VIHAR, AZHIKODE, KANNUR, PIN - 670009 BY ADVS. MATHEW KURIAKOSE G.GIREESH K.R.ARUN T.G.SUNIL (PERUMBAVOOR) J.KRISHNAKUMAR (ADOOR) C.N.PRAKASH MONI GEORGE SHAJI P.K. ## **RESPONDENT/RESPONDENT/PETITIONER:** KIZHAKKE MANJAKKANDI HARIDASAN AGED 65 YEARS S/O. LATE KUNHAPPAN, RESIDING AT INDRAPRASTAM, AZHIKODE, KANNUR DISTRICT., PIN - 670009 BY ADV RAJESH SUKUMARAN K **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 09.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RCRev.102/2023 2 ## A.K.JAYASANKARAN NAMBIAR & MOHAMMED NIAS C.P., JJ ............................................................ RCRev. No.102 of 2023 ............................................................. Dated this the 9[th] day of June, 2023 ## O R D E R ## Mohammed Nias C.P., J. The respondent-tenant in RCP No.218/2014, on the file of the Rent Control Court, Kannur, has filed this revision aggrieved by the judgment in RCA No.8/2020 of the Rent Control Appellate Authority (District Judge), Thalassery, that confirmed the order of eviction granted by the trial court under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as the Act). 2. The respondent herein, the landlord, filed the petition for eviction stating that he bonafide required the petition schedule room to start a business in construction material shop. It was stated that the petition schedule building is a hall partitioned into three units in which an English Medium School, under the name and style “Chinnu Minnu English Medium School,” is functioning, making use of another building also obtained on lease. It is the specific contention of the landlord that at the time of letting, the respondent was running a tuition centre. The landlord became the owner RCRev.102/2023 3 of the petition schedule building in August 2013. It was in the year 2014 that the Rent Control Petition was instituted seeking eviction on the ground of arrears of rent and also for the bonafide need stated above. 3. The revision petitioner-tenant resisted the petition challenging the bonafides of the petitioner in instituting the petition as, according to him, the proceedings were initiated since the tenant did not accede to the demand of the landlord for payment of exorbitant rent. It is also contended that the landlord has other buildings which could be used for the purpose now sought. The tenant further contended that he is mainly depending on the income derived from the school being conducted in the petition-scheduled building and that there are no other vacant rooms available in the locality for him to shift the classes being conducted in the petition-scheduled building. In the RCP, after trial, the Rent Controller found that the landlord was entitled to the order of eviction under Section 11(3) of the Act and disallowed the eviction on the ground of arrears of rent. 4. Aggrieved by the said order, the tenant had preferred RCA No. 37/2016, which confirmed the order of the Rent Controller. The matter was taken up in revision before this Court in RCR No. 316/2019, in which, for the first time, he claimed the protection of Section 11(11) of the Act, contending that there is an embargo in evicting the tenant, who was running an educational institution. It was also argued that Ext.B1, a letter sent by the landlord to the tenant on 14.8.2013, expressed the desire of the landlord to let out the building to him for an enhanced rent, which would be determined, and, therefore, the need projected cannot be held to be genuine. The High RCRev.102/2023 4 Court, in revision, found as per the order dated 24.9.2019 that the factual questions in the above regard are to be considered by the trial court and, accordingly, remanded the matter to the Rent Control Court for fresh disposal. Thus, the question regarding Section 11(11) of the Act and also the impact of Ext.B1 letter were directed to be considered in the remand order. 5. After remand, the Rent Control Court gave opportunities for both parties to adduce further evidence. The landlord was further examined as PW1 and the respondent as RW1. Two additional documents on the side of the tenant were marked as Exts.B12 and B13. After hearing both sides and evaluating the evidence, the court below found that the landlord is entitled to get an order of eviction under Section 11(3) of the Act. It was aggrieved by the said order that RCA No.8/2020 was filed, mainly contending that the implication of Ext.B1 letter and the scope and ambit of Section 11(11) of the Act were not considered in the correct perspective by the Rent Control Court and the same led to the eviction order being passed. 6. The appellate authority found that going by Section 11(11) of the Act, the building concerned ought to have been let out to an educational institution recognized by the Government right from the very beginning of the lease arrangement, and for this purpose, relied on the judgment of this Court in Issac Mathew v. G.Nirmala [2016 (1) KHC 510] , which held that the exemption provided under Section 11(11)(ii) of the Act would apply only if the building were let out for use as an educational institution, and the same is being used as such, and further, the educational institution ought to be recognized by the Government or any other authority empowered thereunder. RCRev.102/2023 5 In other words, the conditions prescribed should be co-terminus with the original lease, and as far as the present case is concerned, it was admitted by the tenant that he obtained the building for conducting a tuition centre, and it is only later that he started a school making use of the above building and another building situated nearby. Thus, the ingredients of Section 11(11) of the Act were not met in the instant case, and the tenant's contention was rejected in that regard. The reliance on Exts.B12 and B13 to show that the Government had entrusted the Deputy Director of Education to grant permission to unrecognized schools to conduct annual examinations up to VI standard in the schools and also to issue transfer certificates in accordance with the terms and conditions stipulated therein, cannot be treated as a recognition to run a school. 7. The second argument made by the appellant before the trial court was that Ext.B1 letter issued by the landlord on 14.8.2013 intimating that there was no difficulty in leasing out the building to him if he was ready to execute a new agreement by enhancing the rent and this, according to the tenant, would cut at the root of the bonafide need claimed by the landlord for eviction. The appellate court rightly did not accept the said contention relying on the judgment of this Court in Aluminium Glassware Emporium and another v. Umanath Shenoy and another [2012 KHC 703] that a demand for a periodical increase in the rent cannot be said to be so unreasonable and unjust to deny an otherwise just and genuine claim for vacant possession on the ground of bonafide need. Thus, the appellate court found that there was nothing unusual or suspicious in the landlord's conduct in his efforts to get an enhancement of rent due to him and found that the tenant's contention in that RCRev.102/2023 6 regard has to be repelled. 8. The question of consideration of provisos did not arise in view of the order of the earlier remand order in RCR No.316/2000, where, as aforesaid, two aspects alone were directed to be considered. Still, the Rent Controller had evaluated all aspects relating to the protection of the provisos to the tenant and found that the tenant was not entitled to to the same. All the findings of the Rent Controller were affirmed by the appellate authority while dismissing the appeal. Challenging the said judgment, this revision is filed. 9. Before us, the learned counsel for the revision petitioner argued that Section 11(11) of the Act created a bar in the landlord's seeking eviction, and the orders of eviction cannot be sustained. It was also his argument that Ext B1 letter would show that the intention of the landlord was to get enhanced rent, and only because the tenant failed to accede to the said request, the instant petition for eviction was filed. 10. Having heard the learned counsel for the petitioner and the learned counsel for the respondent and having considered the judgments and the available records, we do not think that the order of the court below upholding the order of eviction by the Rent Controller needs any interference. 11. Section 11(11)(ii) reads as follows:- “In respect of any building which has been let for use as an educational institution, and is actually being used as such, provided that the institution has been recognised by the Government or any authority empowered by them in this RCRev.102/2023 7 behalf, so long as such recognition continues.” 12. In George v. Ramachandra Reddiar (2001 KHC 124), a Division Bench of this Court has held that “On a true interpretation of the provision, it appears to us that to attract S.11(11) of the Act, it must be a case of a letting out for use of a recognised educational institution and the building being actually used for running the recognised educational institution. According to us, the proviso occurring in S.11(11)(ii) would clearly lead to the conclusion that even at the time of letting, the tenant must be a person who is running a recognised educational institution, or the tenant must be an institution that has been recognised. Therefore S.11(11) of the Act takes, within its purview, only cases where the letting is for use as a recognised educational institution and the building is actually used for that educational institution.” 13. Again, in Issac Mathew v. G.Nirmala (2016 (1) KHC 510)] , it was held as follows: “Looking at the phraseologies employed, it is clear that the interdiction created thereunder applies only if the building was let out for use as an educational institution and the same is being used as such, and the educational institution has been recognised by the Government or any other authority empowered thereunder. According to us, the stipulations/qualifications should have existed when letting out the building itself. In other words, the conditions prescribed should be co-terminus with the original lease.” 14. Admittedly, in the instant case, the building was taken for running a tuition centre and not a school. Resultantly, the conclusion arrived at by the RCRev.102/2023 8 appellate authority that the tenant is not entitled to the benefit of Section 11(11)(ii)(b) is in order and not liable to be interfered with. 15. The second contention on behalf of the tenant that the contents of Ext B1 would militate against the need set up also cannot be accepted. The appellate court had given cogent reasons supported by the judgments of this Court and held that the demand for a fair rent or an enhanced rent taking into account the prevailing conditions, cannot be taken as a ground for negativing a plea under Section 11(3) if the need set up is otherwise genuine. Every landlord has a right to get a fair rent to which he is entitled, and a tenant who is not willing to pay the same cannot be heard to contend that because the landlord has made a demand, the bona fides of his claim for eviction under Section 11(3) has to be doubted. We find that the findings arrived at by the courts below against the tenant are proper, regular, and legal, calling for no interference under Section 20 of the Act. We find no merit in the revision, and the same is accordingly dismissed. At this juncture, the learned counsel for the petitioner prays for a reasonable time to vacate the premises. Accordingly, we deem it appropriate to grant six months' time to the petitioner to vacate the premises subject to the following conditions:- “ (i) The revision petitioner shall file an affidavit before the Rent Control Court or the Execution Court, as the case may be, within two weeks from the date of receipt of a certified copy of this order, expressing an unconditional undertaking that he will surrender vacant possession of the petition scheduled building to the petitioner-landlord within six RCRev.102/2023 9 months from the date of this order and that, he shall not induct third parties into possession of the petition scheduled building, and further he shall conduct any business in the petition scheduled building only on the strength of a valid licence/permission/ consent issued by the local authority/statutory authorities; ii) The revision petitioner shall deposit the damages for use and occupation, which shall be equal to the rent fixed, with entire arrears on date, if any, before the Rent Control Court or the Execution Court, as the case may be, within four weeks from the date of receipt of a certified copy of this order, and shall continue to pay rent for every succeeding month, without any default; (iii) Needless to say, in the event of the revision petitioner failing to comply with any one of the conditions stated above, the time limit granted by this order to surrender vacant possession of the petition scheduled building will stand cancelled automatically, and the landlord will be at liberty to proceed with the execution of the order of eviction.” **==> picture [21 x 10] intentionally omitted <==** ## A.K.JAYASANKARAN NAMBIAR JUDGE Sd/- ## MOHAMMED NIAS C.P., JUDGE okb/