North Wayanad Co-operative Rubber and Agricultural Marketing Society Ltd. v. T.T.P. Shameena

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **WEDNESDAY, THE 10[TH] DAY OF AUGUST 2022 / 19TH SRAVANA, 1944 R.C.REV.NO. 3 OF 2022 AGAINST THE JUDGMENT DATED 03.07.2020 IN R.C.A.NO.7 OF 2015 OF THE RENT CONTROL APPELLATE AUTHORITY (DISTRICT JUDGE), KALLPETTA AND THE ORDER DATED 18.12.2014 IN R.C.P.NO.7 OF 2013 OF THE RENT CONTROL COURT (MUNSIFF), MANANTHAVADY** ## **REVISION PETITIONER:** **NORTH WAYANAD CO-OPERATIVE RUBBER AND AGRICULTURAL MARKETING SOCIETY LTD. NO. C-348, MANANTHAVADY, REP. BY ITS SECRETARY, GIRIJA A, AGED 56 YEARS, W/O. T.V. PREME CHANDRAN, BLOCK OFFICE ROAD, MANANTHAVADY VILLAGE, MANANTHAVADY POST, WAYANAD DISTRICT, PIN - 670 645.** **BY ADVS. JACOB SEBASTIAN K.V.WINSTON** ## **RESPONDENT:** **T.T.P.SHAMEENA, AGED 72 YEARS, W/O. DR.V. KUTTIALI, CHUNDAKUNNUMMAL HOUSE, 9/120, EDAKKAD, CHUNGAM, THAMARASSERI POST, KOZHIKDOE DISTRICT, REP. BY POWER OF ATTORNEY HOLDER T.T.P. ASHRAF, AGED 71 YEARS, S/O. C.P. ABDULLA KEYI, AARZOO, 27/516-C, KUTHIRAVATTAM POST, KOZHIKODE DISTRICT 673 016.** 2 R.C.Rev.No.3 of 2022 **BY ADVS.** **P.A.HARISH** **V.V.SURENDRAN C.K.SANTHOSH** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 22.07.2022, THE COURT ON 10.08.2022 DELIVERED THE FOLLOWING:** 3 R.C.Rev.No.3 of 2022 ## **O R D E R** ## Ajithkumar, J. The respondent-tenant in R.C.P.No.7 of 2015 on the file of the Rent Control Court (Munsiff), Mananthavady, is the petitioner. The respondent-landlady filed the R.C.P. seeking eviction under Sections 11(2)(b), 11(4)(i) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The Rent Control Court as per order dated 18.12.2014 ordered eviction under Sections 11(4)(i) and 11(4)(iii) of the Act, and directed the petitioner to surrender vacant possession of the petition schedule shop room within a period of 30 days from the date of that order. An appeal was filed under Section 18(1)(b) of the Act. The Rent Control Appellate Authority (District Judge), Kalpetta, as per judgment dated 03.07.2020 in R.C.A.No.7 of 2015 set aside the order of eviction under Section 11(4)(i) of the Act, but confirmed the order of eviction under Section 11(4)(iii) of the Act. The petitioner challenges the said judgment in this Revision filed under Section 20 of the Act. 4 R.C.Rev.No.3 of 2022 2. On 06.01.2022, the Revision was admitted to file. Execution of the order of eviction was stayed for a period of one month. The order of stay has been extended from time to time and is still in force. 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 4. The plea for eviction of the respondent under Section 11(4)(iii) of the Act is on the ground that the petitioner has in its possession another building of its own on the Block Panchayat Road near Mysore Road Junction, which is a multi-storied one. That building is reasonably sufficient for the purpose of the petitioner. That alone survives for consideration now. The petitioner refuted the said plea by contending that it has been using the petition schedule room for conducting a sale depot and the fact that it has a building of its own at a different place cannot be a reason for eviction under Section 11(4)(iii) of the Act. It is contended that under Section 11(4)(iii), the building in possession of the tenant has 5 R.C.Rev.No.3 of 2022 to be reasonably sufficient for his requirement but here, the building in the possession of the petitioner is not a substitute for the sale depot of the society, that is functioning in the petition schedule shop room at a different place. 5. The learned counsel appearing for the petitioner would contend that the petitioner, which is a Co-operative Society, has several depots; each one has been located at different places in order to suit the needs of the farmers, who come to the society as customers. If the depot being functioned in the petition schedule shop room is closed down, the farmers, who come to that depot, will be put to difficulty. It is therefore contended that owning a building by the petitioner at Mysore Road Junction cannot be a ground for eviction. Suitability of the said building for the functioning of the depot now accommodates in the petition schedule shop room has to be considered taking into account the locational advantage also. The learned counsel would submit that the courts below did not consider the said aspects and on holding that the petitioner has in its possession a multi-storied 6 ## R.C.Rev.No.3 of 2022 building, mechanically ordered eviction under the provisions of Section 11(4)(iii) of the Act. 6. The learned counsel appearing for the respondent, on the other hand, would contend that RW1 did not state such aspects before the court and the submission of the learned counsel for the petitioner is without there having any support of evidence. It is submitted that in the absence of any evidence that the depot in the petition schedule shop room is functioning in order to cater to the needs of the farmers, there cannot be a finding that the multi-storied building in their possession is insufficient or suitable for their purpose. 7. PW2 is the Secretary of the Mananthavady Grama Panchayat. He produced Ext.A4. That evidence proved that the Society has a multi-storied building of its own. RW1, the Secretary of the petitioner-Society admitted also that the Society is in possession of such a building. Once possession of a building with the tenant is proved, it is his burden to establish that such building is not suitable or sufficient for his purpose. 7 R.C.Rev.No.3 of 2022 8. Section 11(4)(iii) is extracted hereunder for convenience of reference: “If the tenant already has in his possession a building or subsequently acquires possession of or puts up a building, reasonably sufficient for his requirements in the same city, town or village.” 9. The above provision is applicable in all cases where: i) The tenants already have in their possession a building; or ii) subsequently acquire possession of; or iii) puts up a building; iv) reasonably sufficient for their requirements in the same town or village. The above provision contemplates, not only a situation where a tenant subsequently acquires a building, but also a situation where a tenant is already in occupation of another building. In the present case, the tenant already has in its possession a building. The above is not a fact that is disputed by the petitioner. The contention is that the building in its occupation is not sufficient for its purpose. 10. This Court in **V.M.Andrews v. Daisy Punnan and others [2016 2 KHC 37]** held, 8 R.C.Rev.No.3 of 2022 “14. As regards the other ground is concerned, it is conceded by the tenant when examined, that he had constructed a double-story building and part of the business has been shifted to the said building. Though he had contended that subsequently acquired building is not sufficient to cater to the need or to conduct business that is being carried on in the petition schedule building, he had not taken out any commission to prove that the subsequently acquired building is not sufficient for his purpose. Once it is admitted by the tenant that he had come into possession of another building after taking possession of the petition schedule building, the burden is on the tenant to prove that that building is not sufficient for his purpose which has not been established in this case. So, under the circumstances, the courts below were perfectly justified in coming to the conclusion that the landlords are entitled to get eviction under section 11(4) (iii) of the Act and the concurrent findings on facts do not call for any interference.” 11. In the light of the law laid down in the aforesaid decision, it is the burden of the petitioner to prove that the building in the possession of the Society is not suitable or sufficient to accommodate the depot being functioned in the petition schedule shop room. Evidence of RWs1 and 2 is totally insufficient to prove that fact. In the circumstances, 9 R.C.Rev.No.3 of 2022 the concurrent finding rendered by the courts below is not liable to be interfered with. ## 12. In **Rukmini Amma Saradamma v. Kallyani** **Sulochana [(1993) 1 SCC 499]** , the scope of revisional powers of the High Court under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 came up for consideration before the Three-Judge Bench of the Apex Court. While considering whether the High Court could have re-appreciated entire evidence, the Apex Court held that, even the wider language of Section 20 of the Act cannot enable the High Court to act as a first or a second court of appeal. Otherwise, the distinction between appellate and revisional jurisdiction will get obliterated. Hence, the High Court was not right in re-appreciating the entire evidence both oral or documentary in the light of the Commissioner's report. The High Court had travelled far beyond the revisional jurisdiction. Even by the presence of the word ‘propriety’ it - cannot mean that there could be a re appreciation of evidence. Of course, the revisional court can come to a 10 ## R.C.Rev.No.3 of 2022 different conclusion but not on a re-appreciation of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it. 13. In **Hindustan Petroleum Corporation Limited v. Dilbahar Singh [(2014) 9 SCC 78]** a Five-Judge Bench of the Apex Court considered the revisional powers of the High Court under Rent Acts operating in different States. After referring to the law laid down in **Rukmini Amma Saradamma** the Apex Court reiterated that even the wider language of Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 does not enable the High Court to act as a first or a second court of appeal. The Constitution Bench agreed with the view of the Three-Judge Bench in **Rukmini Amma Saradamma** that the word ‘propriety’ does not confer power upon the High Court to re-appreciate evidence to come to a different conclusion, but its consideration of evidence is confined to find out legality, regularity and propriety of the order impugned before it. 14. In **Thankamony Amma v. Omana Amma [AIR** 11 ## R.C.Rev.No.3 of 2022 **2019 SC 3803 : 2019 (4) KHC 412]** after considering the matter in the backdrop of law laid down in **Rukmini Amma Saradamma** , **Ubaiba** and **Dilbahar Singh (supra)** the Apex Court held that when the findings rendered by the courts below were well supported by evidence on record and could not be said to be perverse in any way, the High Court could - not re appreciate the evidence and interfere with the concurrent findings by the courts below while exercising revisional jurisdiction. 15. Viewed in the light of the proposition of law in the aforesaid decision, we are of the view there is no reason to interfere with the concurrent finding rendered by the courts below resulting in the order of eviction of the petitioner under Section 11(4)(iii) of the Act. The Revision is accordingly dismissed. 16. At the time of pronouncement of the order, the learned counsel for the petitioner has made a request to afford a period of six months for vacating the premises pointing out the difficulty in finding out another room and 12 R.C.Rev.No.3 of 2022 making necessary arrangements for shifting the business. The learned counsel for the respondent is agreeable to grant a reasonable time. 17. Having considered all the aspects, we deem it appropriate to grant six months’ time to surrender vacant possession of the petition schedule shop room, subject to the following conditions: - (i) The respondent-tenant in the Rent Control Petition 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 the tenant will surrender vacant possession of the petition schedule shop room to the petitioner-landlady within six months from the date of this order and that, the tenant shall not induct third parties into possession of the petition schedule shop room and further the tenant shall conduct any business in the petition schedule shop room only on the strength of a valid licence/permission/ consent issued by the local authority/statutory authorities; - (ii) The respondent-tenant in the Rent Control Petition shall deposit the entire arrears of rent as on date, if any, before the Rent Control Court or the Execution Court, as 13 ## R.C.Rev.No.3 of 2022 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 months, without any default; - (iii) Needless to say, in the event of the respondent-tenant in the Rent Control Petition 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 schedule shop room will stand cancelled automatically and the petitioner-landlady will be at liberty to proceed with the execution of the order of eviction. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** dkr