Sajith Bhaliga v. Paul S/o. George Chacko and Others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE B.KEMAL PASHA FRIDAY, THE 22ND DAY OF MARCH 2013/1ST CHAITHRA 1935 RCRev..No. 19 of 2013 () ------------------------- AGAINST THE ORDER/JUDGMENT IN RCA.42/2008 of ADD.DIST. JUDGE & RCAA, EKM DATED 27-09-2012 AGAINST THE ORDER/JUDGMENT IN RCP.21/2006 of RENT CONTROL COURT,KOCHI DATED 31-10-2007 REVISION PETITIONER(S)/APPELLANT/RESPONDENT : ----------------------------------------------------------------------------- SAJITH BHALIGA, S/O. R.A.BHALIGA, SHOP NO.1/360, PRINCESS STREET FORT KOCHI, PIN-682 001. BY ADVS.SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA SRI.S.VAIDYANATHAN SRI.ANEESH JAMES SRI.S.SREEKUMAR (SR.) RESPONDENT(S)/RESPONDENTS/PETITIONERS : ---------------------------------------------------------------------- 1. PAUL S/O. GEORGE CHACKO, H.NO.1/358, CHEEYADATH HOUSE PRINCESS STREET, FORT KOCHI, PIN-682 001. 2. ANEE D/O. GEORGE CHACKO, H.NO.1/358, CHEEYADATH HOUSE PRINCESS STREET, FORT KOCHI, PIN-682 001. 3. LEELA PAUL D/O. GEORGE CHACKO, H.NO.1/358, CHEEYADATH HOUSE PRINCESS STREET, FORT KOCHI, PIN-682 001. 4. JACK S/O. GEORGE CHACKO, H.NO.1/358, CHEEYADATH HOUSE PRINCESS STREET, FORT KOCHI, PIN-682 001. 5. LENNET D/O. GEORGE CHACKO, H.NO.1/358, CHEEYADATH HOUSE PRINCESS STREET, FORT KOCHI, PIN-682 001. R BY ADV. SRI.M.A.ASIF THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 22-032013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **[CR]** **THOTTATHIL B. RADHAKRISHNAN & B. KEMAL PASHA, JJ.** **-----------------------------------------------** R.C.R. No. 19 of 2013 **-----------------------------------------------** Dated this the 22[nd] day of March, 2013 ## **O R D E R** ## **Kemal Pasha, J.** Whether the act of a tenant, in carrying out alterations to the rented building without the knowledge and consent of the landlord, when such alterations tend to trap the landlord in criminal liability, comes within the ambit of S.11(4)(ii) of Act 2 of 1965? Whether the alteration of the facade of the building by the tenant without the knowledge and consent of the landlord, in RCR 19/13 -:2:- such a manner as to destroy the antique beauty of a building situated in the heritage zone, will constitute a ground under Section 11(4)(ii) of the Act? Whether the need of the landlord to start a 'home stay' in the building, can be projected as a _bona fide_ need for own occupation within the scope of S.11(3) of the Act? These are the questions that come up for consideration in this Rent Control Revision. 2. The petitioner/tenant who stands directed by the Rent Control court, Kochi to put the respondents/landlords in possession of the scheduled shop room on the grounds under Sections 11(4)(ii) and 11(3) of Act 2 of 1965 has unsuccessfully challenged the said order before the Rent Control Appellate Authority, Ernakulam through R.C.A. No.42 of 2008. 3. The scheduled shop room, which forms part of a residential building that belonged to late George Chacko, devolved on these respondents, who are his legal heirs, on his death. The said building is abutting RCR 19/13 -:3:- the 'Princess Street' commonly known as 'Loafers Corner' at Fort Kochi. 'Princess Street' is one of the oldest streets of Fort Kochi, known for its old, western style buildings. All the buildings abutting the street are specially notable for its antique beauty, still embracing the traditional values and culture left behind by the foreigners who had formerly occupied the area. Over the passing years, the locality has grown to be a paradise for tourists, both nationals and internationals. Being attracted by its heritage ambiance and antique beauty, foreign tourists in particular, are craving for a residential accommodation there and the area has virtually become a frequent hang-out for them. Because of the nearness of the St. Francis Church, Fort Kochi, and the ancient antique beauty of the buildings abutting the street, the government has included the area in the heritage zone, which is a ' _prohibited area_ ' and ' _regulated_ ' area within the meaning of _Ancient Monuments and Archaeological Sites and Remains Rules_ RCR 19/13 -:4:- _1959_ . 4. On 6.5.2006, the first respondent, on noticing some hasty constructions by the tenant at the tenanted premises without the knowledge and consent of the landlords, and without any permission from the local authority and other competent authorities, the first respondent requested the appellant to desist from such acts; but his requests fell in deaf ears. Therefore, the first respondent, on 7.5.2006, filed a complaint before the Kochi Corporation complaining about the said illegal constructions. The Building Inspector visited the spot, and directed the appellant to stop such constructions, and subsequently a stop memo was also issued. Overlooking those directions, the appellant continued the constructions. By taking advantage of the fact that 13[th] and 14[th] of May 2006 were holidays, he carried out several modifications and alterations to the building by way of new constructions thereby changing the whole facade of the building. The planks and wooden materials RCR 19/13 -:5:- from the front wall of the room were replaced with rolling shutters, which according to the landlords, have destroyed and reduced the value and utility of the building, materially and permanently. The landlords, after knocking all the doors for justice, filed O.S.No.2016 of 2006 before the Munsiff's court, Kochi for mandatory injunction as well as prohibitory injunction against the tenant, and the said suit stands decreed in favour of the landlords. 5. The third respondent is a widow who has a daughter to be maintained. She is in _bona fide_ need of the building for starting a business in home-stay for accommodating foreigners and such other tourists in the ground floor of the building. The first respondent who was gainfully employed in UAE Exchange and Finance Services Ltd. also has demited his office, and he also wants to join in such a new venture, which has enough potential in the locality. 6. The case of the tenant is that no timely RCR 19/13 -:6:- repairs and maintenance to the building were being carried out by the landlords, which necessitated the removal of the deteriorated planks and wooden materials at the front portion of the building, and its replacement with rolling shutters. Such maintenance works were carried out by him with the permission of the first respondent, and it does not destroy or reduce the value or utility of the building materially and permanently. The tenant is conducting a business in sales of cigars in the shop room, the income from which is the main source of livelihood of the tenant. It is also contended that the 3[rd] respondent is employed as a teacher at the Rajagiri School and is gainfully employed. 7. It is not disputed that the schedule building is situated in a ' _prohibited area_ ' as well as ' _regulated area_ ' withing the meaning of _Ancient Monuments and Archaeological Sites and Remains Rules, 1959_ (herein after referred to as 'the Rules'). As per Rule 33 of the RCR 19/13 -:7:- said Rules, no person other than an archaeological officer shall undertake any constructions in a ' _prohibited area_ ' or in ' _regulated area_ '. As per Rule 34, every person intending to undertake any construction in a _regulated area_ shall apply to the Director General in Form VII at least three months before the date of commencement of such construction. As per Rule 35, on receipt of an application under Rule 34, the Director General may grant a licence, or, if he is satisfied that the licence should not be granted, refuse to grant the licence. Any such licence, if granted, conditions relating to the manner of construction can be imposed and incorporated. Any violation of such conditions will invite cancellation of such licence, under Rule 36. As per Rule 39, whoever unlawfully undertakes any construction in a _prohibited_ or _regulated area_ , or contravenes any of the conditions of a licence, or fails to remove any unauthorized constructions as per Rule 38(1), shall be punishable with imprisonment, which may extend to RCR 19/13 -:8:- three months or with fine which may extend to `5,000/or with both. 8. It is not disputed that St. Francis Church has been declared as an ancient monument. As per notification, S.O.1764, area coming withing 100 metres from such ancient monument has been declared as _prohibited area_ and the area further beyond it up to 200 metres is declared as a _regulated area_ . Matters being so, licence is required for undertaking any construction within the said _protected area_ or _regulated area_ . There is no meaning in contending that the alterations carried out by the tenant were only repairs to the building, and not constructions. As per Rule 1(a) ' _construction_ ' means construction of any structure and includes additions to or alterations of a existing building. Therefore, the removal of planks with which the front portion of the building was made of, and installation of rolling shutters, and the alteration of the facade of the building, patently comes within the RCR 19/13 -:9:- definition of ' _construction_ ' as per the Rules. Admittedly that was undertaken by the tenant without procuring any licence as contemplated under the Rules. 9. Apart from the above, the tenant has resorted a strange contention that such constructions were undertaken by him as permitted by the first respondent. The tenant has not even a scrap of paper with him to show that the first respondent had consented to any such _construction_ . It cannot be even imagine that the first respondent could have consented to such a _construction_ as it was clearly illegal and it would result in criminal prosecution against the first respondent. From the evidence it has clearly come out that the tenant has carried out such _construction_ illegally and unauthorizedly, without the knowledge and consent of the landlords, and even overlooking the objections forwarded by the landlords as well as the building inspector and the officers of the local authority. The said stand taken by the tenant is clearly with a RCR 19/13 -:10:- view to roping the first respondent also in an offence under the Rules. As per the Rules, the owner of the building is definitely answerable to such illegal and unauthorized constructions. As the said constructions are illegal, it would clearly destroy the proper utility of the building materially and permanently. No doubt, such illegal and unauthorized constructions carried out by the tenant have to be considered as constructions which destroy the utility of the building materially and permanently. 10. By changing the facade of the building and by giving the look of a modern structure on account of the installation of rolling shutters, the ancient, western, antique beauty of the building were taken away. When all the buildings abutting the 'Princess Street' are looking alike with an antique beauty, the alteration of the building which gives a modern look has resulted in the building becoming an eyesore. The heritage value of the building has been lost. The learned Senior RCR 19/13 -:11:- Counsel for the appellant has led us through various decisions of this Court as well as the Apex Court in order to persuade us that the affixing of rolling shutters and the removal of old destroyed planks from the building have only strengthened the building, which would not result in destruction or reduction of the value or utility of the building materially and permanently within the meaning of S.11(4)(ii) of the Act. The question whether such alterations, modifications or constructions will tend to destroy or reduce the value or utility of the building materially and permanently will depend upon the facts and circumstances of each case. 11. It is for the landlord to decide as to how should his building look like, how should be its front elevation, what should be the roof of it, etc. When the tenant defaces the building, alters its front elevation, or alters its roof by making constructions of permanent nature, without the consent of the landlord, it will certainly invite the ground under section 11(4)(ii) of the RCR 19/13 -:12:- Act, provided such acts of the tenant destroys the value or utility of the building materially and permanently in the landlord's point of view. In such cases it has to be viewed from the landlord’s point of view and not from the angle of the tenant in order to appreciate whether such alteration materially and permanently destroys the value or utility of the building. A Division Bench of this Court in _**Michael v. Paramara Group Devaswom**_ (2006(1) KLT 979), in a case wherein the tenants had encroached upon the open space of the landlord and made unauthorised constructions covering the open area while making alterations and additions to the structure, has held that so far as the landlord is concerned, the landlord has been deprived of the vacant space outside the original building. Based on the reasoning that the impairment should be assessed from the landlord's point of view and not that of the tenant, it was held therein that it has to be inferred that the value or utility of the building has been materially RCR 19/13 -:13:- affected. By placing reliance on the decision noted _supra_ , another Division Bench of this Court in which one of us, _Thottathil B. Radhakrishnan J_ was a member, in _**Malayi Kumudam v. M.V. Venugopal**_ **(2013 (1) KHC 742(DB)** , has held that any additional construction by the tenant by utilising the appurtenant vacant land of the landlord also, will attract the ground under section 11(4)(ii) of the Act, as the building includes the appurtenant land as well. 12. Any straitjacket formula cannot be applied for deciding whether the so called 'strengthening' of the building will tend to reduce the value or utility of the building materially and permanently. In this case it may be correct that the constructions carried out by the tenant might have strengthened the building; but it is a stark reality that the said construction has taken away the ancient antique beauty and the old western look of the building. The same has resulted in the building becoming a pimple in the face of the locality, as all the RCR 19/13 -:14:- other buildings abutting the 'Princess Street' are having such an ancient, western look. The said constructions carried out by the tenant has resulted in the loss of the heritage value of the building. Therefore, in this particular case, such constructions have reduced the value or utility of the building materially and permanently, within the meaning of S.11(4)(ii) of the Act. 13. The need urged by the landlords is that the scheduled shop room is required for starting a homestay business in the ground floor of the whole building including the scheduled shop room for the 3[rd] respondent who is a widow and who has to look after and maintain her daughter. It has come out in evidence that the husband of the 3[rd] respondent was appointed as a Ship Engineer and unfortunately, within two or three weeks of his appointment, the ship became missing in her first voyage. Subsequently, the third respondent became employed as a teacher in Rajagiri RCR 19/13 -:15:- School which according to the courts below, is an unaided school. She find it difficult to pull on with the meager income to support herself and her daughter. As a subsequent event, the first respondent who was employed in UAE Exchange and Finance Services Ltd. has demited his office and resigned when he was transferred to New Delhi, as he has to look after the affairs of his sister, the 3[rd] respondent and her daughter. He also wants to join in the said new venture. There is enough scope and potential for such a business in the said locality, as the buildings in the locality are being used as frequent hang-outs by foreigners. Over and above the scheduled shop room, there are six other bedrooms in the ground floor of the building. By pointing out that the first respondent as PW1 has deposed that the landlords are intending to utilize the scheduled shop room as a coffee shop, the learned Senior Counsel argued that the landlords have deviated from the need originally projected by them. On going RCR 19/13 -:16:- through the evidence of PW1 it can be seen that the landlords are intending to make use of the entire ground floor of the building for home-stay business, and that the proposed coffee shop is also a part of such home-stay, which is highly required for the persons occupying such home-stay. Therefore, it has clearly come out that the need urged by the landlords, is _bona fide._ 14. There is absolutely nothing to show that the need urged by the landlords on the ground under Section 11(3) of the Act is hit by the first proviso to S.11(3). The tenant has failed to establish that the tenant is entitled to the protection of the second proviso to S.11(3) of the Act. The concurrent findings on facts entered by both the courts below do not suffer from any perversity, illegality, irregularity, or impropriety. In the result, (a) This Rent Control Revision is dismissed. (b) The tenant is granted four months' time from RCR 19/13 -:17:- today to vacate the premises and deliver possession to the landlords on the following conditions: (i) The tenant remits the entire arrears as on today before the executing court within three weeks from today and files an affidavit before the executing court within three weeks from today, unconditionally undertaking to surrender vacant possession of the premises to the landlord within four months from today. (ii) The tenant pays charges towards use and occupation of the building at the current rent rate from today till he gives vacant possession of the premises to the landlord. (c) Execution proceedings, if any, pending before the executing court shall be kept in abeyance for a period of four months if the aforesaid conditions are satisfied. RCR 19/13 -:18:- (d) If there is default in performing any of the conditions imposed in clause (b) above, the benefit given to the tenant as per this order will stand recalled automatically and the executing court shall effect delivery forthwith. **THOTTATHIL B. RADHAKRISHNAN, JUDGE** ## **B. KEMAL PASHA, JUDGE** ul/- [True copy] _P.S. to Judge._