Pulikkathodi Ali v. Mathew Jose Puthiya Kunnel

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU WEDNESDAY, THE 4TH DAY OF OCTOBER 2017/12TH ASWINA, 1939 RCRev..No. 314 of 2017 -------------------------RCA 20/2012 of THE RENT CONTROL APPELLATE AUTHORITY (ADDL.DISTRICT COURT - II), KALPETTA, WAYANAD DATED 30-06-2017 RCP 7/2009 of THE RENT CONTROLLER (MUNI-MAGI.COURT), MANANTHAVADY DATED 31-07-2012 REVISION PETITIONER/APPELLANT/RESPONDENT: ------------------------------------------- PULIKKATHODI ALI AGED 59 YEARS, S/O.KUNHIMOYTHEEN, MANANTHAVADY AMSOM, VEMOM DESOM, MANANTHAVADY TALUK, WAYANAD DISTRICT. BY ADVS.SRI.M.SASINDRAN SRI.SATHEESHAN ALAKKADAN RESPONDENT/RESPONDENT/PETITIONER: ------------------------------------ MATHEW JOSE PUTHIYA KUNNEL AGED 57 YEARS, S/O.JOSEPH, MANANTHAVADY AMSOM, ARATTUTHARA DESOM, MANANTHAVADY TALUK, WAYANAD DISTRICT-673121. BY SRI.BLAZE K.JOSE(CAVEATOR) THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 0410-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **CR** ## **K.HARILAL & A.M.BABU, JJ** - - - - - - - - - - - - - - - - - - - - R.C.R.314 of 2017 - - - - - - - - - - - - - - - - Dated : 4[th] October, 2017 - - - - - - - - - - - - - - - - - - - - - - - - ## **ORDER** ## Harilal, J. - 1.Revision petitioner is the tenant who suffered an order of eviction passed by the Rent Control Court under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act (for short 'the Act'). Though he had preferred an appeal, before the Appellate Authority, the Appellate Authority also affirmed the findings of the Rent Control Court and dismissed the appeal. Thus, this revision petition is directed against the legality and propriety of the concurrent findings of the courts below under Section 11(3) of the Act. The parties in this order are referred as in the Rent Control Petition. ## 2.According to the petitioner, the petition **RCR.314/2017** 2 schedule building is situated facing Mananthavadi-Mysore road, on the southern side. An extent of 12 cents of land is lying vacant in the northern side of the petition schedule building. The petitioner wants to utilize that vacant property gainfully. But no access is available to that property. Thus, the petitioner bona fide needs the petition schedule road to make an access to the back portion of the said property, after demolishing the petition schedule building. 3.The respondent resisted the aforesaid contention contending that the need projected in the petition is a pretext for eviction only. The petitioner was aware of the vacant possession of the property even at the time of entrustment of the building under lease to the respondent. It is impossible to make an access to the said property as averred by the petitioner. The petitioner can easily cut and open a road through the western side of the petition ## **RCR.314/2017** 3 schedule building. He is entitled to get protection under the 2[nd] proviso to Section 11(3) of the Act as he is depending mainly on the income from the business in the petition schedule building and no alternative buildings are available in the locality to shift his business. - 4.On the aforesaid rival contentions both parties adduced evidence and after appreciating the evidence on record, courts below concurrently found that the need projected in the petition is bona fide and the respondent is not entitled to get a protection under the 2[nd] proviso to Section 11(3) of the Act. - 5.Heard the learned counsel for the petitioner and the learned counsel for the respondent. - 6.The learned counsel for the respondent advanced arguments exhaustively challenging the findings under the bona fides of the need. According to **RCR.314/2017** 4 him, an order of eviction could not have been passed for providing a pathway to the property after demolishing the petitioner schedule building. Further, it is contended that, eviction under Section 11(3) of the Act can be sought for occupation of the building only and the requirement of the vacant land, after demolishing the petition schedule building, would not fall under the expression 'occupation' as contemplated under Section 11(3) of the Act. Further it is contended that the courts below failed to appreciate the Commission report in its correct perspective. The Commissioner has reported that a pathway can be provided from the road which lies on the western side of the petition schedule building; - 7.On the other hand, learned counsel for the petitioner advanced arguments to justify the concurrent findings of the courts below under Section 11(3) of the Act. The arguments advanced by the learned counsel for the respondent are ## **RCR.314/2017** **==> picture [7 x 9] intentionally omitted <==** mainly focussed on the extent of the interpretation that can be given to the expression “for his own occupation” contemplated under Section 11(3) of the Act. According to the learned counsel, the “occupation is not confined to occupation of the building only; but includes vacant land, after demolition of the petition schedule building also. - 8.In view of the rival pleas, the question to be considered is, Whether the need for occupying the vacant land, after demolition of the tenanted premises, to use the vacant land laying behind the tenanted premises, can be deemed to be an 'occupation' contemplated under Section 11 (3) of the Act. - 9.We find that this Court in Narayanankutty v. Abiida Abdul Kareem (2002 (2) KLT 507) has considered the meaning of 'occupation' contemplated under Section 11(3) of the Act and the same is extracted below : **RCR.314/2017** 6 “The word “occupation” has got different shades of meaning. Chambers 20[th] Century Dictionary gives the meaning of “occupation” as the act of occupying, state of being employed or occupied, that which occupies or takes up one's attention. Landlord can also occupy passage leading to the building which is appurtenant. The purpose projected in this case by the landlord is bona fide. What is required is demolition of the tenanted premises so as to use it as a passage to the newly constructed building. That means, on demolition the premises is not in exclusive occupation of the landlord but could be used by others as well.” 10.We are in full agreement with the above view taken by the Single Bench of this Court. The expression “for his own occupation, contemplated under Section 11(3) of the Act is not confined to occupation of the building only, after vacation of the same by the tenant; it has to be given a wider meaning encompassing occupation of the vacant land also, after demolition of the petition schedule building, for using the entire property gainfully. Further, in the above view, we find that the need for construction of a pathway, after demolition of the petition schedule building, so as to use the vacant land lying behind the petition schedule shop room **RCR.314/2017** 7 also would fall under the expression 'occupation' contemplated under Section 11(3) of the Act. 11.Going by the impugned judgment it is seen that in Ext.C1 Commission report, the Commissioner has reported that it is not possible to construct a pathway from the western road as certain electric posts are found standing in the western road and the said road is lying at a higher level of 10 feet from the petition schedule property. As regards the possibility of constructing the road from the southern main road through the western portion of the petition schedule property, the Commissioner has reported that there is a staircase on the western side of the petition schedule building. Unless that staircase is demolished, no pathway can be provided through that side and if that staircase is demolished, it will affect the strength of the building itself. On the basis of the Commission report, the court below found that **RCR.314/2017** 8 the need for constructing a pathway, after the demolition of the petition schedule building, is reasonable and the respondent failed to bring out any circumstance or materials which would negate the bona fides of the need. We do not find any reason to interfere with the said findings of the courts below. 12.Considering the nature of occupation, after demolition of the tenanted premises 1[st] proviso to Section 11(3) of the Act has no application to the instant case. As regards 2[nd] proviso, the burden of proof is on the respondent but there is no evidence other than the oral assertion of the respondent. After appreciating his evidence the court below concurrently found that the respondent miserably failed to discharge the burden of proof under the 2[nd] proviso to Section 11(3) of the Act. This Court is not inclined to re-appreciate the evidence on record under revisional jurisdiction. We do not find any kind of illegality or impropriety in any of the **RCR.314/2017** **==> picture [7 x 9] intentionally omitted <==** findings of the courts below. Hence this revision petition is dismissed. 13.The learned counsel for the respondent prayed for one year time to surrender the vacant possession of the petition schedule building. Having regard to the entire facts and circumstances of the case, the revision petitioner/tenant is given six months' time from today to vacate the petition schedule building, on the following conditions. (1). The revision petitioner/tenant shall file an affidavit, within two weeks from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, expressing an undertaking that he will vacate the petition schedule shop room within six months from today. (2). The revision petitioner/tenant shall deposit the entire arrears, if any, within one month, before the Execution Court or the Rent Control Court, as the case may be, **RCR.314/2017** 10 and shall continue to pay the rent without default. (3). In the event of failure to comply with any of the conditions stated above, the time granted to vacate the premises will stand automatically vacated and the landlord will be at liberty to proceed with the execution of the eviction order. Sd/- **K.HARILAL Judge** **Sd/-** **A.M.BABU Judge** Mrcs/4.10 //True Copy// P.S.To Judge