Rent Control Revision Petition No. 157 of 2017 (Appukutty v. Valiyakandi Kunhamammed Haji and Satheesan)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN WEDNESDAY, THE 2[ND] DAY OF NOVEMBER 2022 / 11TH KARTHIKA, 1944** **RCREV. NO. 157 OF 2017 RCA NO.120/2016 OF RENT CONTROL APPELLATE AUTHORITY-II,** ## **KOZHIKODE** **RCP NO.231/2014 RENT CONTROL COURT-I, KOZHIKODE REVISION PETITIONER/1ST RESPONDENT/1ST RESPONDENT:** APPUKUTTY, S/O. KANNAN,AGED 55 YEARS, KORAKATH VEETTIL,CHELAVOOR AMSOM DESOM, KOZHIKODE TALUK P.O,CHELAVOOR. BY ADV SRI.K.A.SALIL NARAYANAN ## **RESPONDENT/APPELLANT AND 2ND RESPONDENT/PETITIONER AND 2ND RESPONDENT:** 1 VALIYA KANDI KUNHAHAMMED HAJI AGED 70 YEARS, S/O. IBRAHIM CHALAYIL, VALIYAPALLI AMSOM DESOM, VADAKARA TALUK-673001 2 SATHEESAN, S/O. KELUKUTTY, AGED 46 YEARS, MELEKIRATHIL HOUSE, CHELAVOOR AMSOM DESOM – 673001, KOZHIKODE TALUK P.O., CHELAVOOR BY ADVS. SRI.V.G.ARUN SRI.T.R.HARIKUMAR THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 02.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RC.REV. NO. 157 OF 2017 **==> picture [31 x 8] intentionally omitted <==** ## 'CR' ## ORDER ## SHOBA ANNAMMA EAPEN, J. The revision petitioner is the tenant. The first respondent/landlord filed R.C.P. No.231/2014 before the Rent Control Court (Additional Munsiff-1), Kozhikode against the petitioner and the second respondent herein/tenants for eviction under Section 11(3) & 11(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (in short, “the Act”). The Rent Control Court dismissed that petition. In the appeal preferred by the first respondent/landlord as R.C.A.No.120/2016, the Rent Control Appellate Authority (Additional District Judge-II), Kozhikode, reversed the order of dismissal and ordered eviction under Section 11(4)(ii) of the Act. Feeling aggrieved thereof, the petitioner/tenant, invoking the jurisdiction of this Court under Section 20 of the Act, has filed this revision petition. 2. Admittedly, the revision petitioner is the tenant RC.REV. NO. 157 OF 2017 **==> picture [31 x 8] intentionally omitted <==** of a building belonging to the first respondent/landlord. The second respondent is the co-tenant. The revision petitioner/tenant is an artist and he is occupying the staircase room described as the petition schedule room from 2005 onwards. There is no dispute regarding the tenancy arrangement and rate of rent. 3. The pleadings relevant for the disposal of this case are as follows: There was a stipulation at the time of entrustment that the tenants will have no right or authority to change the nature and lie of the building. In contravention of that stipulation, the tenants have removed the collapsible shutter situated in the front portion of the room and in its place, a rolling shutter has been set up. Further, the tenants have also laid grills on the parapet wall adjoining the staircase room. The first respondent/landlord alleged that the constructions made by the tenants in the tenanted premises have reduced the value and utility of the building materially and permanently and thereby, they RC.REV. NO. 157 OF 2017 **==> picture [31 x 8] intentionally omitted <==** are liable to be evicted under Section 11(4)(ii) of the Act. The revision petitioner/tenant opposed the rent control petition, contending that they have neither removed the collapsible gate nor set up a rolling shutter. The averment that grill was fitted on the parapet wall was also denied. According to the revision petitioner-tenant, the rolling shutter and the grill on the parapet were in existence at the time of the entrustment and no damage has been caused to the property on account of the act of the tenant. It was further contended that the landlord had recently attempted to set up an electric meter in the petition schedule room for and on behalf of another tenant and the revision petitioner did not accede to his demand and it is on the basis of the ill-will that the landlord has come up with the rent control petition. The Rent Control Court, after appreciating the testimony of PW1, RW1 and CW1 as well as the documentary evidence as Exts.A1, A2, C1 & C2, found that even if the tenant has replaced the collapsible shutter with the rolling shutter, it RC.REV. NO. 157 OF 2017 **==> picture [31 x 8] intentionally omitted <==** cannot be said that the value and utility of the building has been reduced. It was further found that the landlord could not prove as to why the collapsible shutter is more advantageous than a rolling shutter. The trial court found that the construction of the grill on the parapet also cannot be said to be reducing utility or value of the building materially and permanently. Further, the question of bona fide need under Section 11(3) of the Act put forth by the landlord was answered against the landlord and the Rent Control Court dismissed the rent control petition accordingly. Feeling aggrieved, the landlord approached the Rent Control Appellate Authority. In appeal, the claim of eviction under Section 11(3) of the Act was relinquished by the landlord. The main grievance was only in respect of the claim under Section 11(4)(ii) of the Act. The appellate authority, after reconsidering the evidence, reversed the order of the Rent Control Court and allowed eviction under Section 11(4)(ii) of the Act. RC.REV. NO. 157 OF 2017 **==> picture [31 x 8] intentionally omitted <==** 4. Heard the learned counsel for the revision petitioner/tenant and the learned counsel for the 1[st] respondent/landlord. 5. According to the learned counsel for the revision petitioner/tenant, the correct finding rendered by the Rent Control Court was upset by the appellate authority for incorrect reasons. According to him, the findings of the appellate authority that there was reduction of value and utility of the building due to the replacement of the collapsible shutter with rolling shutter and the fixation of iron grill on the parapet of stair case affected the safety of the entire building, are incorrect. It is further submitted that the replacement of collapsible shutter with the rolling shutter is only a minor alteration and it gives more strength to the building and does not reduce the value or utility of the building. It is further submitted that the construction of the grill on the parapet does not cause any obstruction to the landlord and the allegation that the officers of the KSEB have difficulty in RC.REV. NO. 157 OF 2017 **==> picture [31 x 8] intentionally omitted <==** taking meter reading is false and no evidence had been adduced by the landlord in order to prove the same. In Ext.C1 commission report, it is stated that the meter reading can be seen from the staircase. The learned counsel for the revision petitioner/tenant further submitted that the fixation of iron grill on the parapet of the staircase is made as a safety measure and the replacement of the collapsible door with rolling shutter will not reduce the value and utility of the building. Per contra, the learned counsel for the first respondent/landlord submits that the replacement of the collapsible shutter with the rolling shutter and the fixation of iron grills on the parapet were done without the consent of the landlord in clear violation of the terms of agreement. ## 6. Section 11(4)(ii) of the Act reads thus; “(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,- (i) xxx (ii) If the tenant uses the building in such a manner as RC.REV. NO. 157 OF 2017 **==> picture [31 x 8] intentionally omitted <==** to destroy or reduce its value or utility materially and permanently;” 7. The court has to look into the aspect as to whether the act of the tenant has resulted in destruction or reduction of the value or utility of the building. However, in the facts of this case, the act of the tenant cannot be said to be resulted in any obstruction or reduction to the utility of the building, on the other hand, it only strengthened the building, where the rolling shutter has been fixed, instead of collapsible shutter. Whether it is a rolling shutter or collapsible shutter does not make much difference. It is not a permanent structure. Moreover, the fixation of iron grill on the parapet also cannot be considered as a permanent structure. It can be removed as and when required and can be treated as only a minor alteration. Admittedly, the room occupied by the tenant is a stair case room and minor alterations are done as a safety measure. In Viswanathan v. Porinchu [1985 KLT 551], it was held that RC.REV. NO. 157 OF 2017 ..9.. the action of the tenant, replacing the wooden split shutters with rolling shutters for safety, cannot be said to be material alteration. The work done by the tenant does not reduce the value of the petition schedule building materially and permanently. Reduction of value should be material as well as permanent. Likewise, the reduction of utility should be material as well as permanent. During cross examination also, the landlord cannot substantiate that the tenant used the building in such a manner as to destroy or reduce its value or utility materially and permanently. 8. Having regard to the facts and circumstances, we are of the opinion that the view taken by the Rent Control Court is correct. Hence, the revision petition can be allowed, by setting aside the order of eviction passed by the appellate authority under Section 11(4)(ii) of the Act and affirming the order of the Rent Control Court. It is made clear that, if the KSEB authorities find it difficult in noting the meter reading, necessary steps may be taken RC.REV. NO. 157 OF 2017 ..10.. by directing the landlord and the tenant to find out a feasible solution. The revision petition is allowed accordingly. **Sd/-** **A. MUHAMED MUSTAQUE** **JUDGE Sd/SHOBA ANNAMMA EAPEN JUDGE** bka/-