RCR Nos.112 & 118 of 2020

## **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 28[TH] DAY OF SEPTEMBER 2022 / 6TH ASWINA, 1944** ## **R.C.REV.NO.112 OF 2020** **AGAINST THE COMMON JUDGMENT DATED 15.11.2019 IN R.C.A NO.103 OF 2015 ON THE FILES OF THE I ADDITIONAL RENT CONTROL APPELLATE AUTHORITY, THRISSUR, AND THE COMMON ORDER DATED 08.06.2015 IN R.C.P.NO.36 OF 2012 ON THE FILES OF RENT CONTROL COURT, CHAVAKKAD** ## **REVISION PETITIONERS:** - **1 RAFEEKA HAMSA AGED 60 YEARS** - **W/O.LATE KONGAMVEETTIL HAMSA, POOKKILLATH HOUSE, SASTHRI NAGAR, 2ND AVENUE, THRISSUR ROAD, KUNNAMKULAM, THALAPPILLY TALUK.** - **2 JUBEESH HAMSA, AGED 41 YEARS S/O.LATE KONGAMVEETTIL HAMSA, POOKKILLATH HOUSE, SASTHRI NAGAR, 2ND AVENUE, THRISSUR ROAD, KUNNAMKULAM, THALAPPILLY TALUK.** - **3 RAHANA ABOOTHAHIR, AGED 29 YEARS D/O.LATE KONGAMVEETTIL HAMSA, POOKKILLATH HOUSE, SASTHRI NAGAR, 2ND AVENUE, THRISSUR ROAD, KUNNAMKULAM, THALAPPILLY TALUK.** - **4 AMEENA HAMSA, AGED 29 YEARS D/O.LATE KONGAMVEETTIL HAMSA, POOKKILLATH HOUSE, SASTHRI NAGAR, 2ND AVENUE, THRISSUR ROAD, KUNNAMKULAM, THALAPPILLY TALUK.** - **5 MOHAMMED HAMSA, AGED 25 YEARS** - **S/O.LATE KONGAMVEETTIL HAMSA, POOKKILLATH HOUSE, SASTHRI NAGAR, 2ND AVENUE, THRISSUR ROAD, KUNNAMKULAM, THALAPPILLY TALUK.** **BY ADVS. N.M.MADHU SMT.C.S.RAJANI** 2 RCR Nos.112 & 118 of 2020 ## **RESPONDENTS:** **GOPINATHANPILLA AGED 54 YEARS S/O.MEMANA, PADEETTATHIL GOPALAKRISHNAPILLA, KAYAMKULAM VILLAGE, CHERAVALLY MURI, KARTHIKAPPALLY TALUK, ALAPPUZHA DISTRICT, REPRESENTED BY POWER OF ATTORNEY HOLDER AJAYAKUMAR, AGED 58 YEARS, S/O.AMRUTHAMVEETTIL VELAYUDHAN PILLA, KAYAMKULAM VILLAGE, CHERAVALLY MURI, KARTHIKAPPALLY TALUK, ALAPPUZHA DISTRICT, PIN-690 516. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 23.08.2022, ALONG WITH RCRev.118/2020, THE COURT ON 28.09.2022 DELIVERED THE FOLLOWING:** 3 RCR Nos.112 & 118 of 2020 **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 28[TH] DAY OF SEPTEMBER 2022 / 6TH ASWINA,** ## **1944** **R.C.REV.NO.118 OF 2020 AGAINST THE COMMON JUDGMENT DATED 15.11.2019 IN R.C.A NO.102 OF 2015 ON THE FILES OF THE I ADDITIONAL RENT CONTROL APPELLATE AUTHORITY, THRISSUR, AND THE COMMON ORDER DATED 08.06.2015 IN R.C.P.NO.34 OF 2012 ON THE FILES OF RENT CONTROL COURT, CHAVAKKAD** ## **REVISION PETITIONER:** **BASHEER AGED 50 YEARS S/O.POKKAKKILLATH ABU, GURUVAYOOR AMSOM, PALAYUR DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT** **BY ADVS. N.M.MADHU SMT.C.S.RAJANI** ## **RESPONDENT:** **GOPINATHANPILLA S/O.MEMANA, PADEETTATHIL GOPLAKRISHNAPILLA, KAYAMKULAM VILLAGE, CHERAVALLY MURI, KARTHIKAPPALLY TALUK, ALAPPUZHA DISTRICT, REPRESENTED BY POWER OF ATTORNEY HOLDER AJAYAKUMAR, AGED 58 YEARS, S/O. AMRUTHAMVEETTIL VELAYUDHAN PILLA, KAYAMKULAM VILLAGE, CHERAVALLY MURI, KARTHIKAPPALLY TALUK, ALAPPUZHA DISTRICT, PIN-690 516** **BY ADV SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 23.08.2022, ALONG WITH R.C.Rev.112/2020, THE COURT ON 28.09.2022 DELIVERED THE FOLLOWING:** 4 RCR Nos.112 & 118 of 2020 ## **O R D E R** ## Ajithkumar, J These Revision Petitions under Section 20 of the Kerala Buildings (Lease and Rent Control) Act are filed by the tenants - respondents, respectively, in R.C.P Nos.34 and 36 of 2012 on the file of the Rent Control Court (Munsiff), Chavakkad. Rent Control Court as per the common order dated 08.06.2015 ordered eviction under Sections 11(2)(b) and 11(3) of the Act. Respective tenants appealed under Sections 18(1)(b) of the Act before the Rent Control Appellate Authority (District Judge), Thrissur. The appeals were dismissed as per the common judgment dated 15.11.2019. The said orders and the judgments are under challenge in these revisions. 2. These revision petitions are admitted to file on 21.01.2021. The execution of the orders of eviction was stayed as per order in I.A.No.1 of 2020 in the respective revision petitions initially for a period of one month. That order has been extended from time to time and is still in 5 RCR Nos.112 & 118 of 2020 force. 3. Heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondents. 4. The petition schedule shop rooms form part of a larger building comprising ten rooms. Seven rooms are lying vacant. Three rooms are occupied by tenants. The respondent filed R.C.P Nos.34, 35 and 36 of 2012 seeking eviction of the respective tenants under Sections 11(2)(b), 11(3) and 11(4) (iv) of the Act. The petitioners are the respondents in R.C.P No.34 and 36 of 2012 respectively. These cases were tried jointly. PW1 was examined and Exts.A1 to A18 were marked on the side of the respondent. RWs 1 to 3, the respective tenants were examined on their side. Exts.C1 and C2 are the report of the Commissioner and the sketch. The respondent did not press the ground under Section 11(4)(iv) of the Act. 5. The Rent Control Court after considering the evidence on record found that there was deliberate default in payment of rent and the need urged by the respondent was bonafide. Holding further that the petitioners are not entitled 6 RCR Nos.112 & 118 of 2020 to get the benefit/protection under the provisos to Section 11(3) of the Act, eviction was ordered. The Appellate Authority did not accede to the challenge to the order of eviction. 6. The learned counsel appearing for the petitioners at the outset raised a contention that in the facts of this case, the respondent could claim eviction only under Section 11(4) (iv) and not under Section 11(3) of the Act. The learned counsel would submit that the purpose for which eviction was sought being reconstruction and letting out the reconstructed building, eviction ordered concurrently by the courts below under Section 11(3) of the Act is wrong. For ordering eviction under section 11(3) of the Act, besides proving the bonafides of the need urged by the landlords, the court has to satisfy itself that the case does not fall within the mischief of the first or second proviso to the sub-section. If the eviction is ordered under Section 11(4)(iv) of the Act, the tenant has the right of first option. Viewed so, ordering eviction under Section 11(3) of the Act in a case which comes only under Section 11(4)(iv) of the act, interest of the tenant will be prejudiced. Therefore 7 RCR Nos.112 & 118 of 2020 the said contention of the learned counsel appearing for the petitioners requires serious consideration. 7. In **A.S.Parvathy Krishnan v. Jose and others [2007 (4) KLT 1062]** , this Court took the view that when eviction of a building is sought only for the purpose of demolition and using the land where it is situate as an access, the same can be a ground for eviction under Section 11(3) of the Act. In the said decision, this Court held that the word 'occupation' in Section 11(3) has to be given a liberal construction. The contention raised in that case was that the access to be provided after demolition of the tenanted premises was intended to be used by the tenants in another building of the landlord. The tenant contended that such a need cannot be a reason for eviction under Section 11(3) of the Act. The Court did not accept that contention and held that if the need put forward is bona fide, the mere fact that the pathway made after demolition of the building would be used by several persons, including the landlord, or by his tenants, would not take the need out of the purview of Section 11(3) of the Act. In **Gopalakrishnan K. v. K.Maqbool Sha** 8 RCR Nos.112 & 118 of 2020 **[2019 (4) KHC 521]** this Court has considered whether eviction of a tenant can be claimed under Section 11(3) of the Act for the purpose of using the land by the landlord after demolition of the tenanted premises. After referring to the decision of the Apex Court in **Kunhamma v. Akkali Purushothaman [(2007) 11 SCC 181]** , it was held that the principle that a landlord can secure eviction of a tenant under Section 11(3) of the Act to demolish an existing structure for providing a pathway to a property or building of his own falls within the ground under Section 11(3) of the Act is no more res intergra. 8. The principle laid down in **Gopalakrishnan** (supra) and every other previous decisions on the point were referred to by this Court in **Haridasan K. and others v. P.K.Mohanan and others [2021 (3) KHC 365]** and then held that when the landlord claims eviction of a tenant with the object of demolishing the tenanted premises and utilise the said portion of the land also for construction of a new building, it may be a case of reconstruction coming under 9 RCR Nos.112 & 118 of 2020 Section 11(4)(iv) of the Act. Whereas, if the land occupied by the tenanted premises is not required for satisfying the mandatory conditions for carrying out the new construction in the contiguous piece of land, the same can come only under Section 11(3) of the Act. 9. In **Haridasan,** this court further observed that on a careful examination of the factual situation in all the cases referred to therein, it was evident that the bonafide need projected in all such cases was for creating additional facilities for the beneficial enjoyment of some other building in the possession or occupation of the landlord. The court observed, the crucial point for consideration would be touching the purpose of reconstruction. If the proposed building is intended to be let out to different sets of tenants, it would be a case coming under Section 11(4)(iv) of the Act. The learned counsel appearing for the petitioners acting upon the said observation submitted that the purpose for which the respondent seeks eviction is reconstruction after demolishing the existing building and letting out the new building to different tenants and therefore this can only be a case of 10 RCR Nos.112 & 118 of 2020 reconstruction and not bonafide need. 10. PW1 deposed in detail regarding the need for getting vacant possession of the petition schedule premises. Building is situated on 15 cents of property near the Guruvayoor Temple. It is a developed area. PW1 deposed that if an apartment complex is constructed, each of the apartments can be let out on rent to devotees coming to Guruvayoor temple, from which he can generate a good income. It is for that purpose, the respondent wanted to evict the petitioners. As pointed out above, out of ten rooms, seven rooms are vacant. Order of eviction in R.C.P No.35 of 2012 is not challenged and thereby it attained finality. 11. RW1 is the petitioner in R.C.R No.118 of 2020. RW3 is the petitioner in R.C.R No.112 of 2020. RW1 is conducting a hotel and RW3 is conducting a hardware shop in the respective tenanted premises. It would imply that the tenanted premises are commercial buildings and put to use for commercial purposes. As could be seen from Ext.C1 report and the other evidence on record it is an old building composing shoprooms. The proposal is to reconstruct an 11 RCR Nos.112 & 118 of 2020 apartment complex for the residential purpose. It is true that the purpose projected by the respondent for putting up an apartment complex is to tap its commercial potential. The respondent intends to construct a five storey building comprising independent flats for letting out to the devotees coming to the Guruvayur temple. Considering the proximity of the premises to the temple such an endeavour is quite prudent and practical. 12. Section 11(4)(iv) of the Act reads as follows: (4) A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building,- xxxx (iv) if the building is in such a condition that it needs reconstruction and if the landlord requires bona fide to reconstruct the same and if he satisfies the Court that he has the plan and licence, if any required, and the ability to rebuild and if the proposal is not made as a pretext for eviction. 13. The meaning of reconstruction given in Webster's dictionary is, "the act or process of rebuilding, repairing, or restoring something". The meaning of the word ‘building’ as 12 RCR Nos.112 & 118 of 2020 per the definition in Section 2(1) of the Act and also in ordinary language comprises not only the structure of the building but the land upon which it stands also. An occasion for invocation of Section 11(4)(iv) of the Act arises when the tenanted building is in such a condition that it needs reconstruction. Further, the landlord should bona fide require to reconstruct the building. The provision envisages a situation where the condition of the building is such that it requires reconstruction. On the other hand, if the landlord bona fide needed the building to demolish it and build a new one for the purpose of his occupation, that is not a case of reconstruction coming within the sweep of Section 11(4)(iv) of the Act. Unless the nature and intended use of the new building have some semblance to the nature and user of the existing building it cannot be said that the case is one of reconstruction as envisaged in Section 11(4)(iv) of the Act. 14. Occupation of the building by the landlord ordinarily conveys that he occupies the whole of the building. But such an abstract meaning cannot be ascribed since a building can 13 RCR Nos.112 & 118 of 2020 be put in use for various purposes including letting out to others. Therefore it cannot be insisted that for the physical occupation of the building by the landlord alone an order of eviction under Section 11(3) of the Act can be claimed. A case where the landlord wants, after demolition of the existing building, to put up a new building for the purpose of letting out also can be occupation by the landlord coming within the purview of Section 11(3) of the Act. Certainly, it shall not be a pretext for eviction. It should be a bonafide one. The Court should satisfy itself that the projected need is genuine, honest and sincere. 15. Here the new building is intended to be let out for residential purposes. Apartments/flats in the new building are proposed to be let out to the devotees coming to the Guruvayoor temple. When a building comprising shop rooms is demolished and an apartment complex is built, that cannot be a reconstruction of the existing structure, but new construction altogether. There is no logic in insisting that a building where the shops/businesses of the tenants can be accommodated 14 RCR Nos.112 & 118 of 2020 alone should be constructed. When the landlord wants to construct a building consisting only of residential units making use of the entire land, and not merely the area occupied by the tenanted building, it is his right and prerogative and the tenants cannot have a say in that matter. If the intent of Section 11(4)(iv) of the Act is understood in the light of the meanings of the words ‘building’ and 'reconstruction' used therein it can be said that the need projected by the respondent can come only under Section 11(3) and not under Section 11(4)(iv) of the Act. 16. The preparedness and financial ability of the respondent to put up an apartment complex in the land in question are not very much under challenge now. The first proviso to Section 11(3) of the Act can have no application in this case. With respect to the application under the second proviso to Section 11(3) of the Act, the concurrent findings of the court below are not seriously assailed. The findings with reference to Section 11(2)(b) of the Act are also not put to scrutiny by the petitioners by raising any serious contentions. The challenge to the concurrent findings of the court below 15 RCR Nos.112 & 118 of 2020 thereby ordering eviction under Section 11(2)(b) and 11(3) of the Act can then to be approached in the touchstone of the principle laid down in the following decisions. 17. 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 different conclusion but not 16 RCR Nos.112 & 118 of 2020 on a re-appreciation of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it. 18. 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. 19. In **Thankamony Amma v. Omana Amma [AIR 2019 SC 3803 : 2019 (4) KHC 412]** after considering the 17 RCR Nos.112 & 118 of 2020 matter in the backdrop of law laid down in **Rukmini Amma Saradamma 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. 20. Viewed in the light of the aforesaid decisions, we find no reason to interfere with the findings in the judgment of the Appellate Authority and the order of the Rent Control Court, on the ground of illegality, irregularity or impropriety. Hence this Revision Petition fails. We, accordingly, dismiss it. 21. At the time of pronouncement of the order, the learned counsel for the petitioner has made a request to afford four months' time for vacating the premises. The learned counsel for the respondent is agreeable to grant four months’ time. 22. Having considered all the aspects, we deem it appropriate to grant four months’ time to surrender vacant 18 RCR Nos.112 & 118 of 2020 ## possession of the petition schedule building, subject to the following conditions: - (i) The respondents-tenants 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 he will surrender vacant possession of the petition schedule shop rooms to the petitionerlandlord within four months from the date of this order and that, they shall not induct third parties into possession of the petition schedule shop rooms and further they shall conduct any business in the petition schedule shop rooms only on the strength of a valid licence/permission/ consent issued by the local authority/statutory authorities; - (ii) The respondents-tenants 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 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 19 RCR Nos.112 & 118 of 2020 months, without any default; - (iii) Needless to say, in the event of the respondents-tenants 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 rooms will stand cancelled automatically and the petitioner-landlord will be at liberty to proceed with the execution of the order of eviction. **Sd/-** **ANIL K.NARENDRAN JUDGE** **Sd/-** **P.G. AJITHKUMAR JUDGE** PV