Union of India and others v. P. Vijayalakshmi and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** ## **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **THURSDAY, THE 10[TH] DAY OF FEBRUARY 2022 / 21ST MAGHA, 1943** **R.C.REV. NO. 1 OF 2022 AGAINST THE JUDGMENT DATED 16.07.2021 IN R.C.A.NO.48 OF 2018 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-II), MANJERI AND THE ORDER DATED 27.02.2018 IN R.C.P.NO.21 OF 2017 OF THE RENT CONTROL COURT (MUNSIFF),** ## **MANJERI** ## **REVISION PETITIONER:** - **1 UNION OF INDIA, REPRESENTED BY SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF COMMUNICATION AND IT, DEPARTMENT OF POST, DAK BHAWAN, NEW DELHI - 110 001.** - **2 SUPERINTENDENT OF POST OFFICE, CENTRAL GOVERNMENTMANJERI DIVISION, MANJERI - 676 121.** - **3 POST MASTER GENERAL, NORTHERN REGION, KOZHIKODE, PIN-673 011.** - **4 THE CHIEF POST MASTER GENERAL, VIKAS BHAVAN, THIRUVANANTHAPURAM, PIN-695 033.** **BY ADV SRI.M.N.MANMADAN, CGC** ## **RESPONDENTS:** **1 P. VIJAYALAKSHMI AGED 73 YEARS, W/O. DR. M.P KAMMARA MENON, SERENE, INDUSTRIAL ESTATE ROAD, MANJERI (PO) MALAPPURAM DISTRICT, PIN-676 121.** 2 R.C.Rev.No. 1 of 2022 - **2 P. PRABHAVATHY,** **AGED 71 YEARS, SAIKRIPA, IV/15, 18TH EAST STREET, KUMARAJANGAR,THIRUVANNIYUR, CHENNAI, PIN-600 041, REPRESENTED BY POWER OF ATORNEY HOLDER, 1ST PETITIONER P. VIJAYALAKSHMI, W/O. DR. M.P KAMMARA MENON, SERENE, INDUSTRIAL ESTATE ROAD, MANJERI, PIN-676 122.** - **3 P. MOHANAN AGED 68 YEARS,** **NIRAVYAYA, VAIPPARAPADI, MANJERI (PO), MALAPPURAM DISTRICT, PIN-676 121.** - **4 P. SUJATHA AGED 66 YEARS, C/O. MARATH VIJAYAN, MARATH HOUSE, ENKAKAD (PO), WADAKKANCHERY, TRICHUR DISTRICT, PIN-680 582.** - **5 VIVEK AGED 39 YEARS, S/O. LATE VIJAYAN, PULIKKOT HOUSE, 22ND MILE, MANJERI P.O, MALAPPURAM DISTRICT, PIN-676 121.** - **6 INDU AGED 35 YEARS, D/O. LATE VIJAYAN, PULIKKOT HOUSE, 22ND MILE, MANJERI (PO), MALAPPURAM DISTRICT, PIN-676 121.** - **7 VINAY, AGED 34 YEARS, S/O.LATE VIJAYAN, PULIKKOT HOUSE, 22ND MILE, MANJERI (PO), PIN-676 121 .** - **8 SREELATHA, AGED 54 YEARS, W/O.LATE VIJAYAN, PULIKKOT HOUSE, 22ND MILE, MANJERI (PO), PIN-676 121.** - **BY ADV M.A.ABDUL HAKHIM** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 10.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 R.C.Rev.No. 1 of 2022 ## **O R D E R** ## Ajithkumar, J. The petition schedule building was let out to the petitioners by the respondents on 18.10.2006 for a period of five years. The lease was extended from time to time. A post office is functioning in the building. The respondents filed R.C.P.No.21 of 2017 before the Rent Control Court (Munsiff), Manjeri, seeking eviction of the petitioners from the said building under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. Eviction was ordered under Section 11(3) of the Act. Claim for eviction under Section 11(2)(b) of the Act was declined. The petitioners preferred an appeal before the Rent Control Appellate Authority (Additional District Judge-II), Manjeri, which was dismissed as per judgment dated 16.07.2021. The said judgment and the order are under challenge in this revision petition filed under Section 20 of the Act. 2. Today, when the matter came up for admission the respondents entered appearance through Counsel. 4 R.C.Rev.No. 1 of 2022 3. Heard the learned Central Government Standing Counsel appearing for the petitioners and also the learned counsel appearing for the respondents. 4. Husband of the 1[st] respondent herein, Sri.M.P.Kammara Menon, is a Doctor having specialization in Pediatrics. He retired from Government service as an Additional Director of Health Services. He is now working in a private hospital. He proposed to start a child clinic in the petition schedule building which belongs to the respondents. He is dependent on the 1st respondent for the purpose. The petition schedule building is an old and dilapidated one, situated annexed to a concrete building. These buildings are proposed to be used for accommodating the clinic. A portion of the tiled building is to be demolished for using the land as a parking space. Therefore, the respondents are in need of the petition schedule building. 5. The claim put forward by the respondents-landlords was refuted by the petitioners contending that the need urged by them lacks bonafides. The very proposal that a two storied 5 R.C.Rev.No. 1 of 2022 building in occupation of the petitioners is to be demolished without producing any plan or permit for reconstruction and without pleading anything regarding the preparations made for starting the clinic, cannot be said bonafide. The son of the 1[st] respondent, who is claimed to be joining in the clinic, is now abroad. This also would show that the need urged is not bonafide. 6. The Rent Control Court recorded oral evidence of PW1 and PW2 and received in evidence Exts.A1 to A4, C1 and C2. The need put forward by the respondent was found bonafide and eviction was ordered by the Rent Control Court. The Appellate Authority followed the suit. 7. The learned Central Government Standing Counsel appearing for the petitioners would contend that the respondents did not plead clearly as to whether the petition schedule building has to be put in use for accommodating the clinic or the same is to be demolished for constructing a new building to start a clinic. The evidence let in by the respondents in that regard is not cogent. The courts below 6 R.C.Rev.No. 1 of 2022 did not consider such improbabilities in the evidence, and therefore, both the courts below went wrong in rendering the finding that the need is bonafide. 8. Section 11 of the Act deals with eviction of tenants. As per Section 11(1), notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Act. As per Section 11(3) of the Act, a landlord may apply to the Rent Control Court, for an order directing the tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him. As per the first proviso to Section 11(3), the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular case it will be just and proper to do so. As per the second proviso to Section 11(3), the Rent 7 R.C.Rev.No. 1 of 2022 Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business. 9. In **Adil Jamshed Frenchman v. Sardur Dastur Schools Trust [(2005) 2 SCC 476]** the Apex Court reiterated that, as laid down in **Shiv Samp Gupta v. Dr. Mahesh Chand Gupta [(1999) 6 SCC 222]** a bona fide requirement must be an outcome of a sincere and honest desire in contradistinction with a mere pretext for evicting the tenant on the part of the landlord claiming to occupy the premises for himself or for any member of the family which would entitle the landlord to seek ejectment of the tenant. The question to be asked by a judge of facts by placing himself in the place of the landlord is whether in the given facts proved by the material on record the need to occupy the premises can be said to be natural, real, sincere and honest. 8 ## R.C.Rev.No. 1 of 2022 The concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. As reiterated in **Deena Nath v. Pooran Lal [(2001) 5 SCC 705]** bona fide requirement has to be distinguished from a mere whim or fanciful desire. The bona fide requirement is in praesenti and must be manifested in actual need so as to convince the court that it is not a mere fanciful or whimsical desire. 10. In **Ammu v. Nafeesa [2015 (5) KHC 718]** a Division Bench of this Court held that, it is a settled proposition of law that the need put forward by the landlord has to be examined on the presumption that the same is a genuine one, in the absence of any materials to the contra. In ## **Gireeshbabu T. P. v. Jameela and others [2021 (5) KHC** **SN 30]** this Court reiterated that in order to satisfy the requirement of Section 11(3) of the Act, a bona fide need must be an outcome of a sincere and honest desire of the landlord in contradistinction with a mere pretext on the part of the landlord for evicting the tenant, claiming to occupy the 9 R.C.Rev.No. 1 of 2022 premises for himself or for any member of his family dependent on him. Once, on the basis of the materials on record, the landlord has succeeded in showing that the need to occupy the premises is natural, real, sincere and honest, and not a ruse to evict the tenant from the said premises, the landlord will certainly be entitled for an order of eviction under Section 11(3) of the Act, of course, subject to the first and second provisos to Section 11(3). 11. PW1 is the 3[rd] respondent. PW2, Sri.M.P.Kammara Menon is the husband of the 1[st] respondent. Both of them deposed regarding the proposal to start the clinic. The petition schedule building, which is the tiled portion of a larger building, is in occupation of the petitioners. Rest of the building is a concrete structure and the same is also proposed to be used for the purpose of the clinic. It is stated that the tenanted premises, being very old and dilapidated, requires extensive repairs. The respondents will effect necessary repairs and make use of the same also for functioning the clinic. It is also stated that a portion of the dilapidated 10 R.C.Rev.No. 1 of 2022 structure would be demolished to use the land as a parking space. 12. As regards competency of PW2 to start a child clinic, the learned Standing Counsel does not have much challenge. Being a qualified doctor, retired as Additional Director from the Department of Health Services, there need not be any doubt or aspersion about his competency to conduct a child clinic. Of course, he is aged above 60 years. If he is determined to have independent practice, it is his decision that is decisive. It is his desire and mindset that is relevant. His old age is not a reason preventing him starting a clinic. When he deposed categorically in court that he wanted to start a clinic of his own with the help and assistance of his son, who also is a qualified doctor, the bonafides of that assertion, cannot be doubted. The courts below considered the entire evidence in detail and concluded that the need urged by the respondents is bonafide. 13. The learned Standing Counsel appearing for the petitioners called upon us to re-appreciate the evidence of 11 R.C.Rev.No. 1 of 2022 PW1 and PW2 before arriving at a decision with respect to the bonafides of the need urged by the respondents. We are afraid, when both courts below considered the entire evidence in great detail and concurrently found that the need urged was genuine, true and bonafide, we have jurisdiction under Section 20 of the Act to re-appreciate the evidence as long as it is shown that there is manifest error or illegality in such finding. 14. Section 20 of the Kerala Buildings (Lease and Rent Control) Act deals with revision. As per sub-section (1) of Section 20, in cases, where the appellate authority empowered under Section 18 is a Subordinate Judge, the District Court, and in other cases the High Court, may, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceedings taken under this Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings, and may pass such order in reference thereto as it thinks fit. As per sub-section (2) of Section 20 of the Act, the costs of and incident to all 12 R.C.Rev.No. 1 of 2022 proceedings before the High Court or District Court under subsection (1) shall be at its discretion. 15. 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 13 ## R.C.Rev.No. 1 of 2022 different conclusion but not on a re-appreciation of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it. 16. In **T. Sivasubramaniam v. Kasinath Pujari [(1999) 7 SCC 275]** the Apex Court held that, the words ‘to satisfy itself’ employed in Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 no doubt is a power of superintendence, and the High Court is not required to interfere with the finding of fact merely because the High Court is not in agreement with the findings of the courts below. It is also true that the power exercisable by the High Court under Section 25 of the Act is not an appellate power to reappraise or reassess the evidence for coming to a different finding contrary to the finding recorded by the courts below. But where a finding arrived at by the courts below is based on no evidence, the High Court would be justified in interfering with such a finding recorded by the courts below. 17. In **Ubaiba v. Damodaran [(1999) 5 SCC 645]** the Apex Court considered the exercise of revisional power by 14 R.C.Rev.No. 1 of 2022 the High Court, under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, in the context of an issue as to whether the relationship of landlord-tenant existed or not. It was urged that whether such relationship existed would be a jurisdictional fact. Relying on the decision in **Rukmini Amma Saradamma** it was contended that, however wide the jurisdiction of the revisional court under Section 20 of the Act may be, it cannot have jurisdiction to re- appreciate the evidence and substitute its own finding upsetting the finding arrived at by the appellate authority. The Apex Court held that, though the revisional power under Section 20 of the Act may be wider than Section 115 of the Code of Civil Procedure, 1908 it cannot be equated even with the second appellate power conferred on the civil court under the Code. Therefore, notwithstanding the use of the expression ‘propriety’ in Section 20 of the Act, the revisional - court will not be entitled to re appreciate the evidence and substitute its own conclusion in place of the conclusion of the appellate authority. On examining the impugned judgment of 15 R.C.Rev.No. 1 of 2022 the High Court, in the light of the aforesaid ratio, the Apex Court held that the High Court exceeded its jurisdiction by reappreciating the evidence and in coming to the conclusion that the relationship of landlord-tenant did not exist. 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. 16 R.C.Rev.No. 1 of 2022 19. In **Thankamony Amma v. Omana Amma [AIR 2019 SC 3803 : 2019 (4) KHC 412]** considering the matter in the backdrop of law laid down in **Rukmini Amma Saradamma** , **Ubaiba** and **Dilbahar Singh** the Apex Court held that the findings rendered by the courts below were well supported by evidence on record and could not even be said - to be perverse in any way. The High Court could not have re appreciated the evidence and the concurrent findings rendered by the courts below ought not to have been interfered with by the High Court while exercising revisional jurisdiction. 20. Viewed in the light of the principles of law as afore, we hold that the findings entered into by the courts below regarding the bonafides of the need are not suffering from any illegality, irregularity or impropriety. The respondents have no contention with reference to the first or second proviso to Section 11(3) of the Act. In these circumstances, we are of the view that the revision petition is devoid of any merit and the same is liable to be dismissed. We, accordingly, dismiss it. 17 R.C.Rev.No. 1 of 2022 21. The learned Standing Counsel for the petitioners would submit that one year period may be allowed for surrendering vacant possession of the petition schedule building. A post office is now functioning in the petition schedule building. It is in evidence that the petitioners already purchased land for the construction of the post office. Either by constructing a new building in that land or by availing another building on rent, the post office can be shifted, but, according to learned Standing Counsel, a period of one year at least is required for the same. The learned counsel appearing for the respondents would submit that six months’ time is the reasonable period. 22. Having considered all the aspects, we deem it appropriate to grant eight months’ time to surrender vacant 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 within two weeks from the date of receipt of a certified copy of 18 R.C.Rev.No. 1 of 2022 this order, expressing an unconditional undertaking that they will surrender vacant possession of the petition schedule shop room to the petitioners-landlord within eight months from the date of this order; - (ii) The respondents-tenant in the Rent Control Petition shall pay damages for use and occupation at the same rate of the monthly rent being paid at present, for every succeeding month, without any default; - (iii) Needless to say, in the event of the respondents-tenant 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 room will stand cancelled automatically and the petitioners-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** dkr