P.A. Mohammadali v. M/S Kalyani Agencies

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 5TH DAY OF SEPTEMBER 2012/14TH BHADRA 1934 R.C.Rev...No. 217 of 2012 () ------------------------RCA.14/2009 of RENT CONTROL APPELLATE AUTHORITY,PALAKKAD RCP.2/2007 of ADDL.MUNSIFF COURT(RENT CONTROL), PALAKKAD ## REVISION PETITIONER/APPELLANT/RESPONDENT: ---------------------------------------- P.A.MOHAMMADALI, AGED 60 YEARS S/O.ABOOBACKER, REGAL BAKERY GROUND FLOOR, KALYANBAGH BUILDINGS RAILWAY STATION ROAD, PALAKKAD. BY ADV. SRI.JACOB SEBASTIAN RESPONDENT/RESPONDENT/PETITIONER: ------------------------------------ M/S.KALYANI AGENCIES KALYANBAGH BUILDINGS, RAILWAY STATION ROAD, PALAKKAD REPRESENTED BY ITS MANAGING PARTNER A.V.SATHAR. PINCODE: 678001. R1 BY ADV. P.O.JOSEPH (CAVEATOR) THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 05-09-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **K.T.SANKARAN & M.L.JOSEPH FRANCIS JJ.,** **- - - - - - - - - - - - - - - - - - - - - - - - - - - -** R.C.R. No.217 of 2012 C **- - - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 5[th] day of September, 2012 ## **O R D E R** ## K.T. Sankaran J., The tenant in a Rent Control Petition filed under Section 11 (3) of the Kerala Building (Leased Rent Control) Act 1985 challenges in this Revision the concurrent findings of the Rent Control Court and the Appellate Authority. 2. The respondent/landlord is a partnership firm. The firm has a building called 'Kalyanbagh buildings', which was formerly known as 'Komens Lodge'. There are 17 rooms in the ground floor in that building. The rooms are rented out to various tenants. One larger room in the ground floor is under the occupation of the petitioner/tenant. He runs a bakery therein since 1968. In the upstair portion of the building, 17 rooms were used for lodging purpose. According to the landlord, they bonafide require the _R.C.R. No.217 of 2012_ **==> picture [14 x 9] intentionally omitted <==** petition schedule room for providing an access to the rear side of the building so as to use that vacant space as a parking area. The main building is on the side of the Municipality Bus station. The building is very near to the Railway station also. There is a public road on the western side of the building, which is called Railway Station road. The plaint schedule building faces west and the petition schedule room has road access. The landlord contended that by demolishing the wall of the plaint schedule room, a convenient access can be provided to the rear side and it can be used as a parking space for the use of the customers in the lodge. 3. There is considerable dispute regarding the nature of the first floor and 2[nd] floor of the building. According to the tenant, 17 rooms in the first floor were being used as a lodge. The roof of the building was a tiled roof. According to the tenant, the landlord applied for changing the tiled roof of the first floor. On getting permission from the Municipality, the landlord un-authorisedly constructed 2[nd] floor and shifted the lodge to the 2[nd] floor. The tenant contended that proceedings were initiated by the _R.C.R. No.217 of 2012_ **==> picture [14 x 9] intentionally omitted <==** Municipality against the landlord, which culminated in an order for demolition of the structure. According to the tenant, the entire 2[nd] floor was directed to be demolished. The landlord challenged that order before the Tribunal for Local Self Government Institutions, Thiruvananthapuram, which passed Ext.A5 order setting aside the order passed by the Secretary of the Municipality. The Tribunal held that the mandatory procedural requirements were not complied with by the Secretary. But the Tribunal also directed that fresh proceedings should be initiated against the landlord. 4. According to the landlord, the proceedings for demolition were not in respect of the rooms in the 2[nd] floor of the building. The proceedings for demolition were taken in respect of certain constructions made in the rear side of the building. The landlord contended that the building had a 2nd floor and the roof was sought to be changed and certain constructions were sought to be made. As per Ext.A2 plan, permission was granted by the Municipality for the said construction. Accordingly, the constructions were made. The Municipality numbered the rooms and tax was collected from _R.C.R. No.217 of 2012_ **==> picture [14 x 9] intentionally omitted <==** the landlord. According to the landlord, there was no violation of the Building Rules. 5. The tenant contended that the bonafide requirement put forward by the landlord is not genuine. He also raised a contention in the additional counter statement that he is entitled to the benefit of the 2[nd] proviso to Section 11(3) of the Act. 6. Before the Rent Control Court, PW1 was examined on behalf of the landlord, he being one of the partners of the firm. PW2 is the Building Inspector of Palakkad Municipality. The same person was examined as RW1 also. The tenant gave evidence as RW2. Documentary evidence was also produced by both the parties. The Commissioner's reports and Plans were marked as C series documents. 7. The Rent Control Court held that the need put forward by the landlord is bonafide. It was also held that the tenant failed to establish the ingredients of the 2[nd] proviso to Section 11(3) of the Act. 8. The tenant challenged the order of the Rent Control Court _R.C.R. No.217 of 2012_ **==> picture [14 x 9] intentionally omitted <==** in Appeal before the Appellate Authority. During the pendency of the Appeal, one room in the ground floor (having two shutters) was vacated by another tenant, which came to the possession of the landlord. The tenant raised a contention that if at all an access to the parking area is required, the wall of that room can be demolished and access can be provided. This was disputed by the landlord, who contended that even by demolishing the wall of that room, a convenient way cannot be provided to the rear side of the building. The Appellate Authority accepted that contention put forward by the landlord, on the basis of the materials which were made available before the Appellate Authority. 9. As regards the bonafide need and the availability or otherwise of the benefits under the 2[nd] proviso to Section 11(3) of the Act, the Appellate Authority concurred with the view taken by the Rent Control Court. The Appellate Authority considered the pleadings and evidence in the case in detail. All the contentions put forward by the parties were referred to and considered by the Appellate Authority. _R.C.R. No.217 of 2012_ **==> picture [14 x 9] intentionally omitted <==** 10. Adv. Sri. Jacob Sebastian, learned counsel appearing for the revision petitioner contended that the requirement put forward is to provide an access to the rear side for the use of the lodgers. The lodging house itself was un-authorisedly constructed and therefore the Rent Control Authorities could not have accepted the bonafide need. In answer, the learned counsel for the respondent, submitted that the construction is authorised and there is no illegality in the running of the lodging house. He relied on Ext.A2 plans and evidence of the Building Inspector. The learned counsel for the respondent also contended that the technical report submitted by the Engineers would also support the contention of the landlord that there was no un-authorised construction of any rooms in the 2[nd] floor. Going by Ext.A2 plan, it cannot be said that the lodging house was unauthorizedly constructed. The proceedings initiated by the Municipality for unauthorised construction relate, as rightly held by the Court below, to the construction allegedly made by the landlord on the rear side of the building. There is nothing to indicate that the proceedings initiated by the Municipality for _R.C.R. No.217 of 2012_ **==> picture [14 x 9] intentionally omitted <==** demolition of the building were in respect of the 17 rooms used for the purpose of the lodge. On the other hand, the Commissioner's plan produced in this case would indicate that some sort of construction was made on the rear side of the building. This would probablise the case of the landlord that proceedings were taken by the Municipality only in respect of such construction and not in respect of construction of the rooms used for lodging purpose. 11. The contention put forward by the learned counsel for the petitioner that as the building itself was illegally constructed, the need put forward cannot be termed as bonafide, is unsustainable in view of the finding of fact that the lodging house does not amount to any illegal or un-authorised construction. 12. There is no dispute that a vacant area is available on the rear side of the building. There is also no dispute that the said area can be converted as a parking space. It is established on facts that if the wall of the plaint schedule room is demolished, a convenient access can be provided to the rear side of the building, which is proposed to be converted as the parking space. As rightly held by _R.C.R. No.217 of 2012_ **==> picture [14 x 9] intentionally omitted <==** the Courts below, bonafide the need was established by the landlord. ## 13. In **Kunhamma v. Akkali Purushothaman** (2007 (3) KLT 599 (SC), the Supreme Court held that the personal necessity envisaged under the Act would include re-possession of the demised premises by the landlord for the purposes of its demolition so as to widen the entrance to another building belonging to the landlord in the immediate vicinity. ## 14. In **Parvathy Krishnan v. Joseph Alias Jose** (2007(4) KLT 1062), a Division Bench of this Court held thus: _“15. It is for the landlord to decide through which portion he is to provide a way to the rear side of the building. The tenant cannot dictate to the landlord that the pathway should be through another portion. Of course, to ascertain whether the need put forward is bonafide, the court would be justified in considering all the facts and circumstances of the case and in that process the Court could also take into account the contention put forward by the tenant. The mere fact that the landlord is in occupation of the northern room and on demolition of that room a way could be provided to the rear side is not a ground to deny_ _R.C.R. No.217 of 2012_ **==> picture [14 x 9] intentionally omitted <==** _an order under S.11(3) to the landlord. The question to be enquired into is whether the need put forward is genuine, and not whether the need could be achieved by other modes. If the need is bonafide, an order could not be denied to the landlord on the ground that the same object could be achieved by demolishing another room.”_ ## 15. We also concur with the view taken by the Courts below that the tenant failed to establish any of the ingredients of the 2[nd] proviso to Section 11(3) of the Act. 16. For the aforesaid reasons, we do not find any ground to interfere with the concurrent findings arrived at by the Courts below. The Rent Control Revision is liable to be dismissed. We do so. 17. The learned counsel appearing for the petitioner submitted that a breathing time may be granted to the tenant to vacate the premises. The learned counsel for the respondent submitted that the Rent Control Petition was filed in the year 2007 and all sorts of untenable contentions were raised by the tenant causing much inconvenience and agony to the landlord. In these _R.C.R. No.217 of 2012_ **==> picture [20 x 9] intentionally omitted <==** circumstances, the counsel submitted that only a maximum period of one moth can be granted to the tenant to vacate. 18. Taking into account the facts and circumstances of the case, we are inclined to grant 4 months' time to the tenant to vacate the premises, on condition that he shall file an additional undertaking before the Rent Control Board undertaking to vacate the premises before the expiry of the said period of four months and also on paying the entire arrears of rent, within a period of two months. The tenant shall also continue to pay the rent to the landlord till the tenant vacates the premises. ## **SD/** **K.T. SANKARAN,** ## **(JUDGE)** **SD/ M. L. JOSEPH FRANCIS, (JUDGE)** dl/