R.C.R. No. 18 of 2010

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 16TH JUNE 2010 / 26TH JYAISTHA 1932 RCRev..No. 18 of 2010() ----------------------RCA.14/2007 of D.C. & SESSIONS COURT,KOLLAM RCOP.2/1994 of MUNSIFF COURT, KARUNAGAPPALLY REVISION PETITIONERS/ APPELLANTS/ADDL.COUNTER PETITIONERS: 1. SHEELA, AMBANATTU VEEDU, PAIKUZHY MURI, 2. VIKRAMAN, AMBANATTU VEEDU, PAIKUZHY MURI SRI.M.K.DILEEPAN SRI.DEEPAK T.NEDUNGADAN RESPONDENT(S): RESPONDENT/PETITIONER: P.SURENDRAN, S/O.LATE SANKARA PANICKAR, BUSINESS, KANNIMEL VEEDU, MEMANA MURI, OACHIRA. ADV. SRI.K.HARILAL(CAVEATOR) THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 16/06/2010, THE COURT ON THE SAME DAY PASSED THE ## ORDER ON I.A.72/2010 IN RCR.18/2010 ## DISMISSED. SD/- PIUS C. KURIAKOSE, JUDGE. SD/- C.K. ABDUL REHIM, JUDGE. 16.6.2010 _okb_ /True copy/ P.A. to Judge ## **PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ.** ## **----------------------------------** ## **R.C.R. No.18 of 2010** ## **----------------------------------** Dated this the 16[th] day of June, 2010 ## **O R D E R ---------------** ## Pius C.Kuriakose,J. Tenants who are ordered to be evicted concurrently on the ground of re-construction under Section 11(4)(iv) are the revision petitioners. In fact the landlord sought eviction on the ground of arrears of rent also. In this revision we need not be concerned with order of eviction passed under Section 11(2)(b) as the entire arrears of rent found by the Rent Control Court and the Appellate Authority has been subsequently discharged. The building in question is situated at Ochira abutting NH-47. The building is 45 years old. The case of the landlord was that the building is old fashioned and that its condition warrants re-construction. The landlord has necessary wherewithal to carry out re-construction and that the proposal will be more profitable from the landlord's point of view. The tenant through his RCR.18/2010 **2** statement of objections contended that the Rent Control Petition is not maintainable. On the strength of a lease deed which is produced in the case of Ext.B3 it was contended that the tenancy is one of land and not of building. It was specifically contended that on the land leased out for commercial purposes it was the tenants who constructed the building and therefore the tenants are entitled for immunity from eviction from the building in question, i.e. to the protection of Section 106 of Kerala Land Reforms Act. As a sequel to that contention the tenants denied the title of the landlord. Apart from that, the landlord's averments regarding condition of the building, the profitability of the proposal and the landlord's ability to carry out re-construction were all strongly disputed. Evidence at trial before the Rent Control Court consisted of Exts.A1 to A9, B1to B9, Ext.C1 commission report and oral evidence of the parties as PW1 and RW1 respectively. Exts.A5 and A6 were respectively the plan and the estimate regarding the landlord's proposal to construct a shop-cum-hotel RCR.18/2010 **3** complex at the site of the petition schedule building and the nearby building belonging to the landlord. Ext.B1 was the document of sale under which the revision petitioner/tenants acquired interest in the building in question. Ext.B2 is the sale deed executed in favour of predecessor in interest of the revision petitioner in respect of the premises in question. Ext.B3 as already indicated is the original agreement under which the building in question was put up. Ext.C1 was the report submitted by an Advocate Commissioner on the basis of an inspection. Ext.C1 is to the effect that the building is old fashioned and the dilapidation has set in. Ext.C1 is also to the effect that the building is situated in a commercially important area of Ochira. Learned Rent Control Court formulated separate points as to; (i) whether the denial by the tenants of the landlord's title is a bonafide one, and (ii) whether the tenants are entitled to the protection of Section 106 of Land Reforms Act, apart from formulating points regarding the existence of otherwise of statutory eviction ground under Section 11 RCR.18/2010 **4** (2)(b) and 11(4)(iv). That court, on appreciating the evidence, came to the conclusion that the tenants are not entitled to the protection of Section 106 of Land Reforms Act and on the basis of that conclusion found that the denial of the title made by them is not bonafide. As regards the merits of the eviction grounds it was found on the basis of evidence that the condition of the building is such that it warrants re-construction and that the landlord has the ability to carry out re-construction and also that the re-construction proposal will be profitable from the landlord's point of view. Accordingly eviction order was passed under Section 11(4)(iv) (apart from other grounds). The Rent Control Appellate Authority reappraised the evidence. That authority also did not become inclined to uphold the prominent contention of the tenants that they are entitled to the protection of Section 106 of the Land Reforms Act. That authority would agree with the Rent Control Court and conclude that the tenants are not entitled to the benefit of Section 106. Consequently that authority concurred with the RCR.18/2010 **5** Rent Control Court on the other issues arising in the case and ultimately dismissed the Rent Control Appeal confirming the order of eviction. 2. In this revision filed under Section 20 various grounds have been raised challenging the findings of the Appellate Authority and Rent Control Court and Sri.R.Sudhir, learned counsel for the revision petitioner addressed strenuous and extensive arguments before us on the basis of all those grounds. All the submissions of Mr.Sudhir were resisted by Sri.K.Harilal, learned counsel for the respondent. Mr.Sudhir would draw our attention to Section 106 and also to Ext.B3. He submitted that it is transparently clear on a reading of Ext.B3 that the lease between the predecessor in interest of the present revision petitioners, the original lessee, and the landlady was a lease of land and not of building. That lease having been entered into on 8.6.1965 much prior to the cut off date of 28[th] May, 1969. The counsel submitted that it is clear from Ext.B3 that the building in question was put up by the predecessor in interest on the basis of Ext.B3. RCR.18/2010 **6** All the ingredients of Section 106 of Land Reforms Act are satisfied in the present case and therefore the tenancy has to be held as one of land and not of building. Once it is so held, it will have to be found that the present petition for eviction from the building is not maintainable. Mr.Harilal would submit that in order that a tenant gets the benefit of Section 106 of Land Reforms Act, it is absolutely necessary that the building from which he is sought to be evicted should belong to him. In the instant case, what is discernible from Ext.B3 is that the building was put up by the original tenant for and on behalf of the landlady. There is a subsequent agreement that the entire cost of construction expended will be adjusted against the rent which is payable for the building. Mr.Harilal highlighted that it is specifically agreed between the parties under Ext.B3 that the agreement will become operative only after the building is constructed. Therefore, according to the learned counsel, though in the initial portions of Ext.B3 there is an indication that the monthly rent of Rs.40/- fixed is rent for the land, the RCR.18/2010 **7** real agreement is to pay rent for the building which is to come into existence four months after the document is executed. Mr.Harilal reminded us of the limits of our jurisdiction under Section 20 and submitted that in this case where the statutory authorities, especially the final fact finding authority, the Appellate Authority has arrived at conclusions by appreciating the evidence properly, there is no warrant for interference under Section 20. 3. When we enquired of Mr.Sudhir as to how his clients' claim that protection under Section 106 of Kerala Land Reforms Act can be sustained in the present case where he does not claim ownership over the building, Mr.Sudhir would cite before us the judgment of this court in **M.Raman Pillai v. K.I.George and another (1974 KLT 246)** . Referring to paragraph 2 of the judgment Mr.Sudhir submitted that the statutory requirement is only that the building should have been constructed by the lessee of the land. There is no requirement under statute that the building should belong to the person who constructed it. RCR.18/2010 **8** 4. We have very anxiously considered the rival submissions addressed at the bar. We are unable to accept the submissions of Mr.R.Sudhir, learned counsel for the revision petitioner. A careful reading of Section 106 of the Kerala Land Reforms Act will show that the immunity from eviction which is guaranteed by that Section is immunity from eviction from the land and not from the building put up on the land. Immunity from eviction from the land is given in respect of the land leased out for commercial or industrial purposes if the lessee of land has constructed “building” for such commercial or industrial purpose before 20[th] May, 1967. We find much merit in the submission of Mr.Harilal that in order that Section 106 applies, the building to be constructed by the lessee should belong to the lessee so that the question of any statutory protection from eviction from the building will not arise exfacie. Ext.B3 is the all important document. What is discernible from Ext.B3 is only the following:“(1). On the situs of the petition schedule RCR.18/2010 **9** building which has an extent of 20 Ft. x 13 Ft. the predecessor in interest of the revision petitioners was allowed to put up a building for his commercial purposes expending a sum of Rs.1,500/-. - (2). A monthly rent of Rs.40/- is fixed as the rent payable by the predecessor in interest of the revision petitioner to the landlady. - (3). Ext.B3 agreement will come into operation only upon expiry of four months from the date of Ext.B3 since so much of time was understood to be necessary for building construction of the building. - (4). The agreement will be for a period of - 20 years of the commencement of its operation. - (5). The entire amount expended by the predecessor in interest of the revision petitioner towards construction of the RCR.18/2010 **10** building (amounting to Rs.1,500/-) will be paid off within a period of 20 years in the following manner: Rs.15/- per mensem towards monthly rent; Rs.15/- per mensem towards interest payable on the advance of Rs.1,500/- expended and Rs.10/- in return of the capital amount of Rs.1500/-; so that the entire amount advanced by the predecessor in interest of the revision petitioner will be wiped off by the 12[th] year under which contingency the predecessor in interest of the revision petitioner will become liable to pay monthly rent of Rs.40/- to the original landlady. According to us, notwithstanding the recital in the earlier portions of Ext.B3 that the monthly payment of Rs.40/fixed is towards rent for the site of the building, further recitals will show that the agreement between the parties has been to pay and receive rent in respect of the building which was to be completed within a period of 4 RCR.18/2010 **11** months from the date of execution of Ext.B3. Under the impugned judgments the learned Appellate Authority endorsing the view of the Rent Control Court has concluded that Ext.B3 at best discloses only an arrangement under which the predecessor in interest of the revision petitioner advanced a sum of Rs.1,500/- for putting up the petition schedule building on behalf of the landlady and the parties agreed that the amount so advanced will be adjusted in the manner recited in the document. Having reappraised Ext.B3 we are of the view that the interpretation placed concurrently by the Rent Control Court as well as the Appellate Authority on Ext.B3 is a plausible interpretation. We are unable to say that the said interpretation is illegal, irregular and improper to the extent of justifying interference under Section 20 of Act 2 of 1965. The learned counsel for the revision petitioners is certainly right when he submits that Section 106 of the Land Reforms Act incorporates a non obstante clause. But as noticed by us what is discernible from Ext.B3 is at best only a short term lease RCR.18/2010 **12** of land with permission to put up a building and a prospective rental arrangement in respect of the building to come up on the land. 5. As already observed by us, Section 106 at the most confers immunity to eligible tenants of land from eviction from the land. In the instant case, it is not even an absolute order of eviction which has been passed by the statutory authorities in respect of the building. The order of eviction that has been passed is on the ground under Section 11(4)(iv). Any eviction order passed under Section 11(4)(iv) is subject to the third proviso to Section 11(4)(iv). The revision petitioners will be entitled for reinduction into the new building that is going to be reconstructed by the landlady after demolishing existing old building. This view of ours also deter us from invoking the revisional jurisdiction under Section 20 which is an attenuated one. 6. Now we shall examine whether the order of eviction concurrently passed by the statutory authorities under Section 11(4)(iv) suffers from any infirmity. RCR.18/2010 **13** Evidently the building is situated at Ochira, which is a famous temple town situated in between Kayamkulam and Karunagappally which are very important Muncipalities in the respective Districts of Alappuzha and Kollam. The building abuts NH-47. The building is at least 45 years old. Ext.C1 commissioner's report is to the effect that the condition of the building warrants reconstruction. Regarding the financial ability of the landlady to carry out re-construction there is no serious dispute. At the time when the Rent Control Petition was enquired into, no permit from the local authority was necessary for carrying out the re-construction. Nevertheless the landlord produced the plan prepared by his Architect as well as the estimate in respect of the proposed re-construction. It is on appreciating these materials that the statutory authorities concluded that the building warrants re-construction. We are of the view that there is no reason to interfere with the above conclusion. 7. It was conceded before us that as things RCR.18/2010 **14** obtained now, in the area of the petition schedule building the Building Rules have been made applicable and that re-construction of any building will now be possible only on the strength of a building permit issued by Ochira Panchayat. According to Mr.Harilal, the landlord will not have any difficulty in obtaining the building permit. We are therefore of the view that appropriate safeguards have been incorporated in this judgment in the context of the present statutory requirement of a building permit for carrying out reconstruction. 8. The result of the above discussion is therefore as follows: Revision fails and will stand dismissed. However, we direct the execution court to ensure that the landlord has been issued with a valid permit by the Ochira Panchayat for carrying out the proposed re-construction. We direct the respondent to complete the re-construction of at least the ground floor portion of the proposed shopping complex within 8 months of obtaining RCR.18/2010 **15** possession. Once the ground floor portion is completed, the revision petitioner will be re-inducted into a portion of the same, subject to his liability to pay fair rent. The parties are directed to suffer their respective costs. ## **PIUS C.KURIAKOSE, JUDGE.** **C.K.ABDUL REHIM, JUDGE.** okb