Shahul Hameed and Abdul Rasheed v. Fathima Sherif and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 22ND DAY OF AUGUST 2012/31ST SRAVANA 1934 RCRev..No. 161 of 2008 (E) -------------------------RCA.9/2007 of PRL.RENT CONTROL APPELLATE AUTHORITY,KOTTAYAM RCOP.2/2006 of RENT CONTROL COURT,KOTTAYAM REVISION PETITIONERS/APPELLANTS/RESPONDENTS: -------------------------------------------- 1. SHAHUL HAMEED, S/O.LATE ABDUL KHADER, RESIDING AT KUTTISSERIL HOUSE, KARAPPUZHA KARA KOTTAYAM VILLAGE, FRUIT MERCHANT, T.B.ROAD KOTTAYAM. 2. ABDUL RASHEED, S/O.LATE ABDUL KHADER, RESIDING AT KUTTISSERIL HOUSE, KARAPPUZHA KARA, KOTTAYAM VILLAGE, FRUIT MERCHANT, T.B.ROAD, KOTTAYAM. BY ADV. SRIR.AZAD BABU RESPONDENTS/RESPONDENTS/PETITIONERS: ------------------------------------ 1. FATHIMA SHERIF, RESIDING AT ANACKAL BUNGLAW, PARATHODU P.O., KANJIRAPPALLY. 2. NABEEZA BEEVI, RESIDING AT VETTUKUZHI, PUTHENPARAMBIL HOUSE, PUTHENANGADY, KOTTAYAM. 3. ABDUL HAMEED, RESIDING AT TONFIQUE MANZIL, ARUPUZHA, THAZHATHANGADY, KOTTAYAM. 4. AIZHA BEEVI, W/O.ISMAIL, RESIDING AT KALLUNKAL HOUSE, KANJIRAPPALLY. 5. ABDUL AZEEZ, RESIDING AT BEENA MANZIL, KADUVAMOOZHI, ERATTUPETTA. 6. SAINABA BEEVI, W/O.KASSIM, RESIDING AT K.K.P. (H), THODUPUZHA. 7. LAILA BEEVI, W/O.ISMAIL, RESIDING AT VETTICKAL HOUSE, ERATTUPETTA. 8. ABDUL RASHEED, RESIDING AT THADATHUNKAL HOUSE, MURUKALAYAM LANE, NEAR UNION CLUB KARAPPUZHA, KOTTAYAM. RCRev..No. 161 of 2008 (E) - 2 - 9. ABDUL RASHIM, RESIDING AT THADATHUMKUZHIYIL HOUSE, THEKKUM GOPURAM, KOTTAYAM. BY ADV. SRI.RAJEEV V.KURUP THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 22-08-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ.** ## **----------------------------------------------------R.C.R No.161 of 2008-E ---------------------------------------------------Dated this the 22[nd] August, 2012** ## **O R D E R** ## Surendra Mohan, J. The revision petitioners are the tenants - counter petitioners in RCOP 2/2006 on the file of the Rent Control Court, Kottayam. The Rent Control Petition was filed by the respondents herein who are the legal heirs of late Haji S.Kasim Bava Rawther who was the original landlord. The respondents filed the Rent Control Petition seeking an order of eviction against the revision petitioners - tenants on the grounds under Section 11(3) and 11(4)(iv) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (the 'Act' for short). The petition was contested by the tenants disputing the contentions of the respondents. After trial, the Rent Control Court granted an order of eviction under Section 11(4)(iv) of the Act. The Rent Control Appellate Authority, Kottayam has in RCA 9/2007 confirmed the order of the Rent Control Court. The revision petitioners have filed this revision aggrieved by the concurrent RCR 161/2008 2 orders of eviction passed against them. 2. According to the landlords, the petition scheduled rooms were taken on rent by the tenants as per a rent deed dated 6-61979. The petition scheduled shop rooms are situate in a land just 10 cents in extent. Though the property has road frontage of the T.B.Road, Kottayam, the road frontage is hardly 12 feet in width. The entire road frontage is occupied by building No:346, one of the shop rooms occupied by the tenants. Building No:347 is situate behind building No:346 and the means of entry to the said shop is through building No:346. There is open land behind the shop rooms, which is in the possession of the landlords. The means of access to the said open area is also through building No:346. The tenants are conducting a fruit stall in building No:346. Building No:347 according to the landlords is being used as a lodge, the rooms being let out to outsiders on daily rent. 3. According to the landlords, the building is situate in an important commercial locality of Kottayam town. The landlords intend to construct a new building after demolishing the present one. The existing building is more than 58 years old and is dilapidated. Reconstruction of the building is absolutely RCR 161/2008 3 necessary according to the landlords. After reconstruction, the landlords intend to let out some of the rooms and also to use the rest of the building portion for their own business purposes. The landlords contended that they have the necessary financial capacity for undertaking the proposed construction. Other rooms are available in the locality for being taken on rent by the tenants. The tenants are not depending on the income from the business conducted in the tenanted premises for their livelihood. Therefore, the landlords sought an order of eviction against the tenants on the ground of their need for bonafide own occupation and also for reconstruction. 4. The tenants on the other hand contended that they had taken the building on rent in the year 1940. The entire petition scheduled building and the vacant space behind it are in the possession of the tenants. The entire building as well as the vacant space behind are being used for the business conducted by the tenants. The allegation that room No:347 is being used as a lodge is disputed. According to the tenants, they are depending solely on the income derived from the business conducted in the tenanted premises for their livelihood and, there are no other suitable buildings available in the locality for RCR 161/2008 4 shifting their business. It was contended that the need put forth by the landlords is bereft of bonafides and that the real intention of the landlords is to sell off the entire property after obtaining an order of eviction against the tenants. On the basis of the above averments, the tenants contended that the Rent Control Petition was liable to be dismissed. 5. The evidence in the case consists of the oral evidence of P.Ws.1 and 2 on the side of the landlords and that of CPW1 on the side of the tenants. Exts.A1 to A5 documents were marked on the side of the landlords while Exts.B1 to B10 documents were marked on the side of the tenants. Exts.C1, C1(a) and C1 (b) report of the Advocate Commissioner and sketch were also marked. Though eviction was initially sought on the ground under Section 11(3) also, the landlords appear to have later on confined their case to the ground under Section 11(4)(iv) alone. After evaluating the evidence, the Rent Control Court ordered eviction under Section 11(4)(iv) of the Act. It is also ordered that the second revision petitioner-tenant shall be given the first option to choose a room on the ground floor of the reconstructed building, on payment of fair rent. RCR 161/2008 5 6. Aggrieved by the order of the Rent Control Court, the tenants preferred an appeal, RCA 9/2007 before the Rent Control Appellate Authority, Kottayam. On a reappraisal of the entire evidence and a reconsideration of the various contentions raised by the tenants, the Rent Control Appellate Authority upheld the order of the Rent Control Court. The direction of the Rent Control Court to allot one of the rooms on the ground floor of the reconstructed building to the tenants has also been upheld. This revision is against the said judgment. 7. We have heard Sri Azad Babu, the learned counsel for the revision petitioners and Sri Rajiv P.Kurup, the learned counsel for the respondents, at length. We have been taken through the records of the case made available to us. We have considered the rival contentions advanced before us. 8. After this petition was initially heard by us, it was felt that there was a likelihood of the matter being settled through negotiations. Therefore, we attempted a settlement of the issues by directing the landlords as well as the tenants to be present in Court. However, the attempt was not fruitful. Therefore, the matter was heard on the merits in detail. RCR 161/2008 6 9. According to Sri Azad Babu, the learned counsel for the revision petitioners/tenants, both the authorities below have misdirected themselves in entering a finding that the landlords bona fide needed vacant possession of the building for the purpose of reconsideration. The appreciation of evidence by the authorities below are also attacked as being wrong and unsustainable. The direction of the authorities below to allot one room in the reconstructed building to the tenants is attacked vigorously pointing out that the tenants are now in occupation of an extent of 2000 sq.ft. spread over the entire ground floor of the building. The entire area is in the occupation of 2 tenants, who are conducting their businesses there. Therefore, according to the learned counsel for the revision petitioners, an eviction without providing for the re-allotment of sufficient space in the reconstructed building, commensurate with the space now occupied by the tenants, is absolutely unsustainable. It is also contended that since there are 2 tenants, two separate portions of the reconstructed building are necessary to be allotted separately to each of the tenants. The above not having been done by the authorities below, it is contended that the orders of eviction passed in this case are liable to be set aside. RCR 161/2008 7 10. Advocate Rajiv P.Kurup on the other hand places reliance on the decisions of this Court to contend that the tenants have no right to insist on being allotted with the same extent of space in the reconstructed building that they were occupying in the tenanted premises. The right of the tenants is only to be given an option to decide as to whether they were willing to take any portion of the reconstructed building by paying the fair rent in respect thereof. It is also contended that the landlords have the right to decide how best their property should be utilised. Therefore, the nature of the building to be constructed in the property cannot be dictated by the tenants, it is pointed out. The landlords are free to decide and plan the proposed building, as deemed fit by them. According to the landlords, the authorities below have considered the various aspects of the case in the proper perspective and passed an order of eviction. Since the tenants have been given the right of option to be allotted a portion of the newly constructed building, it is contended that they are not entitled to any other relief in this revision. 11. A statement has been filed by Advocate Rajiv P.Kurup on 19.10.2009 placing on record the fact that land acquisition RCR 161/2008 8 proceedings have been initiated for acquiring the lands abutting the T.B.Road at Kottayam for the purpose of widening the same. Therefore, the tenanted shop rooms are also proposed to be acquired along with the land on which they are situated. A counter affidavit has been filed by the learned counsel for the revision petitioners disputing the statement filed by the learned counsel for the landlords. According to the revision petitioners, only a portion of the building would be lost in the acquisition. However, the proposed acquisition would not affect the plan of reconstruction of the building by the landlords for the reason that even as per the original plan, the entire tenanted building was to be demolished to provide a passage to gain access to the reconstructed building. Therefore, it has been pointed out that the acquisition proceedings have no effect on the proposal for reconstruction of the building or on the rights of the tenants. 12. The learned counsel for the landlords has placed reliance on the decision of this Court in **Varghese Mathews v. Fakir Rawther Abdul Razack Rawther** [AIR 1982 Kerala 29] in support of his contention that it was not necessary for the building to be so old and dilapidated as to pose danger for human habitation. It is sufficient that the developments in the RCR 161/2008 9 locality are such as to give the building an appearance of antiquity necessitating its reconstruction so as to derive a better income. The construction can also be permitted in cases where the same would be necessary to put the land or the building to better use by the landlords. Therefore, wherever it has been proved that the reconstruction is necessary for a better utilisation of the land and the building by the landlords, taking into account the developments that are taking place in the locality, eviction can be ordered. For the above reason, it is open to a landlord to plan a reconstruction of the building wherever the development in the locality, the importance of the location and better utilisation of the land justify the same. In the decision referred to above, this Court has also noticed that a new construction in a locality would enhance the importance of the locality itself. Such a construction would also give better accommodation to the tenant. Therefore, reconstruction can be ordered even in cases where the building structure is still sound though it has become old by passage of time. In the present case, the authorities below have addressed the issues in the proper perspective. We are not satisfied that the appreciation of evidence by the authorities below is faulty in any manner. RCR 161/2008 10 Therefore, we do not find any grounds to interfere with the concurrent orders of eviction passed in this case. 13. The next question that arises for consideration is whether the direction of the authorities below to allot only one room in the reconstructed building to the tenants requires any modification. According to the landlords, the reconstruction is going to be undertaken utilising a bank loan that has been sanctioned to them. For the purpose of repayment of the bank loan, it is necessary for the landlords to receive the market rent for the reconstructed building. Therefore, it is contended that the proposed reconstruction would not be viable unless a substantial portion of the reconstructed building is given on rent to fresh tenants. The landlords require a portion of the proposed new building for themselves and the additional income for repayment of the loan would have to be generated from the remaining portion of the building. It is also pointed out that in view of the land acquisition proceedings, the landlords have lost a portion of the property. Consequently, there are further limitations on their means of utilisation of the property. 14. For the above reasons, it is contended that the tenants are entitled to be given an option of re-allotment with respect to RCR 161/2008 11 only one room. 15. As stated above, we had tried for an amicable settlement of the issues in this case but, without success. According to the tenants, it is not possible for them to carry on their business in fruits with the only one room allotted to them by the authorities below. Reliance is also placed on the decision of the apex court in **Vishwamitra Ram Kumar v. Vesta Time Co.** [(2007) 14 SCC 374]. In the said case, because of building restrictions, the landlords were not able to utilise the entire land for their construction. Therefore, the tenants were given only 30% less than the area occupied by them, in the reconstructed building. After considering the contentions of the landlords as well as the tenants, the apex court has held in the said case that the tenants should be put back in possession of at least 50% of the area that they were occupying in the old building. To the said extent, the court also modified the plan, subject to which the reconstruction was proposed to be undertaken. 16. In view of the fact that the tenants are now in occupation of the entire ground floor of the building, we are satisfied that an increase in the area that is to be reallotted to them after reconstruction has to be allowed. However, RCR 161/2008 12 considering the commercial importance of the locality and the nature of the construction that is proposed to be undertaken, coupled with the need of the landlords to effect repayment of the bank loan they are proposing to take, we are of opinion that the tenants can reasonably be given a chance of re-option of one room on the ground floor and one room on the first floor also of the reconstructed building, provided they are willing to pay the fair rent in respect of the said rooms. For the foregoing reasons, the Rent Control Revision is disposed of as follows: i) The orders of eviction granted by the Rent Control Court and confirmed by the Rent Control Appellate Authority are confirmed; ii) The tenants are granted the right of re-allotment in respect of one room on the ground floor and one room on the first floor of the reconstructed building that the landlords are proposing to construct after demolishing the present building; iii) For the purpose of exercising their option of reallotment, the landlords shall intimate them of the existence of the rooms available for re-allotment to them by issuing a letter in writing through registered post with acknowledgment due, RCR 161/2008 13 immediately on such rooms being ready for occupation. If the tenants do not exercise their option with respect to the said offer within a period of two weeks of the receipt of such intimation, it shall be open to the landlords to give the said rooms on rent to any other person or to utilise them appropriately, as deemed fit by them; iv) The order of eviction granted by the Rent Control Court and confirmed by the Appellate Authority is modified to the limited extent indicated above. ## _**(PIUS C.KURIKOSE, JUDGE)**_ _**(K.SURENDRA MOHAN, JUDGE)**_ rtr/