RCR Nos. 227 & 228 of 2009

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 9TH FEBRUARY 2011 / 20TH MAGHA 1932 RCRev..No. 227 of 2009(A) ------------------------------RCA.73/2000 of ADDL. DISTRICT COURT, THALASSERY RCP.33/1996 of RENT CONTROL COURT, THALASSERY .................... REV.PETITIONER/RESPONDENT IN RCA & RCP/TENANT ------------------------------------------------------------- NALAKATH PRABHAKARAN, S/O.NARAYANAN, AGED 62 YEARS, BUSINESS, SEENESH ENGINEERING WORKS, JUBILEE ROAD, THALASSERY, KANNUR DISTRICT. BY ADV. SRI.R.SURENDRAN RESPONDENT(S): APPELLANT IN THE RCA/PETITIONER IN RCP/LANDLADY ---------------------------------------------------------------------------------- ARINGALOT PATHUTTY UMMA, D/O.ASYA UMMA, AGED 57 YEARS, NO OCCUPATION, RESIDING AT THIRUVANGAD AMSOM AND DESOM, THALASSERY TALUK, KANNUR DISTRICT. ADV. SRI.C.KHALID FOR R1 SRI.N.GOPINATHA PANICKER FOR R1 SRI.T.P.SAJID FOR R1 SMT.NAMITHA JYOTHISH FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 09/02/2011, ALONG WITH RCR NO.228 OF 2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & N. K. BALAKRISHNAN, JJ. -----------------------------------------------R. C. R. Nos.227 & 228 of 2009 -----------------------------------------------Dated this the 9[th] day of February, 2011 ## **ORDER** ## _Pius C. Kuriakose, J_ RCR.227/09 is filed by the tenant challenging the order of eviction passed by the Rent Control Appellate Authority against him on the ground of bona fide need for own occupation under sub Section 3 of Section 11. The landlady sought to evict him on the grounds of arrears of rent under Section 11(2); bona fide need for own occupation under Section 11(3) and the ground of mal-user of the building in a manner as to reduce the value and utility of the building materially and permanently under Section 11(4)(ii). The landlady's case in the context of the ground under Section 11 (3) was that her husband is presently unemployed and wants to conduct hotel business in the petition schedule building and the adjoining building R. C. R. Nos.227 & 228 of 2009 -2- possessed by one Sukumaran, the predecessor in interest of the revision petitioners in RCR.228/09. The landlady's allegation in the context of ground under Section 11(4)(ii) was that the tenant has caused permanent and material damages to the building and is liable to be evicted on the ground under Section 11(4)(ii). The tenant filed counter statements admitting the tenancy. It was contended that the husband of the landlady was still conducting hotel business in Andhra Pradesh and does not depend on his wife for any purpose. The tenant claimed the protection of the second proviso to sub Section 3 of Section 11. He denied the allegations of the landlady in the context of the ground under Section 11(4)(ii). The RCP filed against the revision petitioners was RCP.33/96. 2. The revision petitioners in RCR.228/09 are the legal representatives of Sri.Sukumaran who was the tenant in -3- R. C. R. Nos.227 & 228 of 2009 possession of the room adjacent to the room which is subject matter of RCR.227/09. The landlady sought to evict him invoking the ground under sub Section 3 of Section 11 projecting the need for her dependent husband to conduct hotel business in the two premises. In this case also the landlady invoked the ground under Section 11(4)(ii). Apart from that by an amendment of the Rent Control Petition the landlady invoked the ground under Section 11(4)(iii) alleging that the tenant is in possession of another building bearing Door No.19/573 in the same locality and that the said building is reasonably suitable for the business conducted by the tenant. Thus, in this case eviction ground under Section 11(4)(iii) was also invoked. 3. To this RCP the tenant filed counter contending that the need projected by the landlady is not bona fide and raising contentions similar to the one raised by the tenant in R. C. R. Nos.227 & 228 of 2009 -4- RCP.33/96. In this case also the tenant claimed protection of the second proviso to sub Section 3 of Section 11. Tenancy is admitted. But the allegations of the landlady in the context of the ground under Section 11(4)(ii) were also denied. Through an additional counter filed by him, he disputed the existence of the ground under Section 11(4) (iii). It was contended that he does not have ownership or possession of any other building. According to him, the possession of the building pointed out by the landlady was obtained by him way back in 1967 and the said building is not suitable for the workshop being conducted in the petition schedule building. 4. The learned Rent Control Court tried the two RCPs jointly. In the enquiry the husband of the landlady was examined as PW1 and Exts.A1 to A8 were marked on the side of the landlady. RW1 examined on the side of the R. C. R. Nos.227 & 228 of 2009 -5- tenant was the tenant in RCP No.32/96 and RW2 was the tenant who is the revision petitioner in RCR 227/09. The learned Rent Control Court on appreciating the evidence and pleadings would come to the conclusion that the eviction ground of arrears of rent which had also been invoked in the two cases is not available in both the cases. It was further found that the eviction ground under Section 11(4)(ii) was also not established. The concessions made by the counsel for the landlady that he is not pressing for eviction on the ground of arrears of rent and mal-user of the building under Section 11(4)(ii) was recorded by the learned Rent Control Court. Coming to the grounds under Section 11(4)(iii) the Rent Control Court would come to the conclusion that there is nothing to doubt the bona fide need projected and that the need appears to be a bona fide one. While coming to such a conclusion, the learned Rent Control Court would R. C. R. Nos.227 & 228 of 2009 -6- repel the contention of the tenant that the buildings in question are not fit for accomplishing the need projected. The court went on to find that the tenant in RCP.33/96 (corresponding to RCR 227/09) is entitled to the protection of the second proviso to sub Section 3 of Section 11. In fact, the court found that both the ingredients of the second proviso are satisfied in favour of the tenant in that case. At the same time, in the case of the tenant in RCP.32/96 (corresponding to RCR 228/09) the Rent Control Court found that the tenant is not entitled for the protection of the proviso to sub Section 3 of Section 11. The court also found that the said tenant is liable to be evicted under Section 11 (4)(iii). Thus, in the result the court ordered eviction against the tenants in RCP.32/96 on the ground under Section 11(3) and 11(4)(iii). However, the eviction order was declined as against the tenant in RCP.33/96. R. C. R. Nos.227 & 228 of 2009 -7- 5. Both sides preferred appeals and the two appeals were considered together by the learned Appellate Authority. Under the impugned judgment, the learned Appellate Authority has allowed the landlady's appeal and ordered eviction against the tenant in RCP.33/96 (the revision petitioner in RCR 227/09). The eviction order passed against the other tenants was confirmed and the appeal preferred by that tenants was dismissed. 6. In these revisions various grounds are raised assailing the eviction order passed by the Appellate Authority. Both these revision petitions were considered by this Court for admission. Notice was issued only on the question whether the tenant is eligible for the protection of the second proviso and also for considering the ground in RCR.228/09 that the eviction ground under Section 11(4) (iii) was not constitutional. R. C. R. Nos.227 & 228 of 2009 -8- 7. Sri.R.Surendran the learned counsel addressed us strenuously for the revision petitioners in both these cases. Sri.Surendran's submissions were resisted forcefully by Sri.T.P.Sajid, the learned counsel for the landlady. 8. Even though the question of constitutionality of Section 11(4) (iii) was one of the questions on which this Court was persuaded to issue notice on admission, no serious submissions were addressed by Sri.Surendran on that question. According to us, there is nothing unconstitutional to Section 11(4)(iii) of Kerala Buildings (Lease and Rent Control) Act (Act 2 of 1965). It is trite by various decision of this Court and the Apex Court that the Rent Control Legislation is a welfare legislation not only for the tenant but also for the landlord in the sense that while it declines eviction in the absence of statutory grounds it ensures eviction on the existence of such grounds. As for -9- R. C. R. Nos.227 & 228 of 2009 the ground under Section 11(4)(iii) the same is established when it is shown that the tenant is in possession of another building in the same city, town or village which is reasonably sufficient for the tenant's purpose. In other words, the eviction ground under Section 11(4)(iii) is a ground available to the landlord when the tenant is landlord like. The legislative intentment underlying the above ground is that in a situation where there is acute accommodation shortage, the tenant should not be allowed the luxury of having more buildings than what is necessary for his purpose. The extra building or buildings available with the tenant should be made available either for a needy landlord or for some other needy tenant. We repel the grounds raised against the constitutionality of the eviction ground under Section 11(4)(iii) of Act 2 of 1965. 9. Coming to the merits of the eviction ground upheld R. C. R. Nos.227 & 228 of 2009 -10- by the two statutory authorities concurrently in RCP.32/96 corresponding to RCR.228/09, it is clear to our mind that the statutory authorities were justified in ordering eviction concurrently on the ground under Section 11(4)(iii). RCP.32/96 was a case where the tenant admitted that he was in possession of another building. The contention was only that the said building is not sufficient for his purpose. The above contention could have been best substantiated by taking out a commission so that report regarding the relative conveniences in the two buildings could be established. The tenant in RCP.32/96 for the reasons best known to him do not take out a Commission. We do not find any illegality, irregularity or impropriety about the judgment of the statutory authorities ordering eviction under Section 11(4)(iii) in RCP.32/96. 10. As already indicated notice on admission was R. C. R. Nos.227 & 228 of 2009 -11- issued only regarding the tenants eligibility for the protection of the second proviso to sub Section 3 of Section 11. In both the RCPs the Rent Control Court did find that the need projected is bona fide. The Appellate Authority confirmed that finding. We do not find any illegality, irregularity or impropriety about the findings concurrently entered in both the cases that the need projected by the landlady for accommodating her husband/PW1 for doing hotel business is bona fide. Before us also arguments were addressed in the context of the benefit of the second proviso to sub Section 3 of Section 11. Here again in RCP 32/96 where eviction order was passed against the tenant under Section 11(4)(iii) it was rightly found that the said tenant will not be entitled for the protection of the second proviso even by the Rent Control Court. Thus, as far as that tenant is concerned it is concurrently found that they are not R. C. R. Nos.227 & 228 of 2009 -12- entitled for the protection of the second proviso. It is only in RCP.33/96 that there is divergence. In RCP 33/96 the Appellate Authority found that for the first time the tenant is not entitled for the protection of the second proviso. 11. It is trite by various decisions of this Court including the Full Bench judgment in _Francis v. Sreedevi Varassiar (2003(2) KLT 230)_ and judgment of Supreme Court in _Kunhamma v. Akkali Purushothaman (2007(3) KLT 99)_ that the burden to show that a tenant is entitled for the protection of the second proviso is on that tenant only. Both the ingredients of the second proviso are conjunctive. A reading of the Rent Control Court's order in that case will show that the Rent Control Court cast the burden of proof on the landlady. This error was rectified by the Appellate Authority by its judgment. As rightly found by the Appellate Authority the tenants in both the cases were unsuccessful in R. C. R. Nos.227 & 228 of 2009 -13- showing that they satisfy both the ingredients of the second proviso. No evidence worth the name has been adduced to show that other suitable buildings are not available in the locality. Thus, we do not find any infirmity, legality or impropriety about the common judgment delivered by the Appellate Authority. 12. In both the cases, Sri.R.Surendran, as a last plea requested for at least one year's time. His request was more appealing in RCR No.227/09 where eviction order is not passed under Section 11(4)(iii). Considering the above appeal of Sri.Surendran even as we dismiss the Rent Control Revisions confirming the eviction orders passed by the Appellate Authority, we are inclined to grant one year's time to the tenant in RCP.33/96 and six months time to the tenant in RCP.32/96 subject to conditions. 13. The result of the RCR 228/09 accordingly is as R. C. R. Nos.227 & 228 of 2009 -14- ## follows:- 14. RCR is dismissed. Revision petitioners are granted six months' time on condition that one of them representing all of them files an affidavit before the execution court or the Rent Control Court, as the case may be, within one month from today undertaking to give peaceful surrender of the building to the landlady within six months from today. It shall also be undertaken that arrears of rent, if any, will be discharged and that occupational charges at the existing rent rate will also be paid as and when the same falls due. 15. RCR 227/09 is also dismissed. The revision petitioner in that case is granted one year's time from today subject to the condition that he shall file an affidavit before the execution court or the Rent Control Court, as the case may be, within one month from today undertaking to give peaceful surrender to the landlady within one month from R. C. R. Nos.227 & 228 of 2009 -15- today and undertaking further that arrears of rent, if any, will be discharged within one month and that occupational charges at the existing rent rate will also be paid off as and when the same falls due. 16. We make it clear that the revision petitioners will get the benefit of time as allowed above only if they file the affidavit on time and honours the undertakings contained therein. PIUS C. KURIAKOSE JUDGE N. K. BALAKRISHNAN JUDGE kns & Srd/- R. C. R. Nos.227 & 228 of 2009 -16- R. C. R. Nos.227 & 228 of 2009 -17- PIUS C. KURIAKOSE & K. SURENDRA MOHAN, JJ. -----------------------------------------------R. C. R. Nos.227 & 228 of 2009 -----------------------------------------------Dated this the 5[th] day of October, 2009 ## **ORDER** ## _Pius C. Kuriakose, J_ Issue notice on admission by speed post to consider the question of the tenants' eligibility for protection to the second proviso only and also to consider the grounds of challenge raised in RCR No.228/09 regarding the constitutionality of the ground under Section 11(4)(iii). ## I.A. Nos.2899 & 2900 of 2009 Interim stay for one month. PIUS C. KURIAKOSE JUDGE R. C. R. Nos.227 & 228 of 2009 -18- K. SURENDRA MOHAN JUDGE kns/-