Union of India v. Safiya, Roubeela and Abdul Rauf

RCR.66 and 129 of 2023 1 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. THURSDAY, THE 20[TH] DAY OF JULY 2023 / 29TH ASHADHA, 1945 ``` ``` RCREV. NO. 66 OF 2023 ``` ``` AGAINST THE JUDGMENT IN RCA 6/2020 OF THE ADDITIONAL DISTRICT COURT AND RENT CONTROL APPELLATE AUTHORITY, TIRUR RCP 85/2016 OF THE RENT CONTROL COURT, TIRUR ``` ## **`REVISION PETITIONER/APPELLANT/4TH RESPONDENT:`** ``` THE UNION OF INDIA, REPRESENTED BY THE SUPERINTENDENT OF POST OFFICES TIRUR DIVISION, TIRUR, MALAPPURAM DISTRICT, PIN - 676104 BY ADV SHRI.M.N.MANMADAN, CGC ``` ## **`RESPONDENTS/RESPONDENTS/PETITIONERS AND 3RD RESPONDENT:`** ``` 1SAFIYA, AGED 61 YEARS W/O.PARAPPURATH HYDROSE HAJI,PARAPPURATH (H) TANALUR AMSOM,PAKARA DESOM, P.O. TIRUR, TIRUR TALUK, MALAPPURAM DISTRICT, PIN - 676307 2ROUBEELA,AGED 43 YEARS D/O.PARAPPURATH HYDROSE HAJI,PARAPPURATH (H) TANALUR AMSOM,PAKARA DESOM, P.O. TIRUR, TIRUR TALUK, MALAPPURAM DISTRICT, PIN - 676307 3ABDUL RAUF, AGED 41 YEARS S/O.PARAPPURATH HYDROSE HAJI,PARAPPURATH (H) TANALUR AMSOM,PAKARA DESOM, P.O. TIRUR, TIRUR TALUK, MALAPPURAM DISTRICT, PIN - 676307 ``` ``` THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 20.07.2023, ALONG WITH RCRev.129/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` RCR.66 and 129 of 2023 2 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. THURSDAY, THE 20[TH] DAY OF JULY 2023 / 29TH ASHADHA, 1945 RCREV. NO. 129 OF 2023 ``` ``` AGAINST THE JUDGMENT IN RCA 5/2020 OF ADDITIONAL DISTRICT COURT AND RENT CONTROL APPELLATE AUTHORITY, TIRUR RCP 86/2016 OF RENT CONTROL COURT, TIRUR ``` ## **`REVISION PETITIONER/APPELLANT/4TH RESPONDENT:`** ``` THE UNION OF INDIA, REPRESENTED BY THE SUPERINTENDENT OF POST OFFICES TIRUR DIVISION, TIRUR, MALAPPURAM DISTRICT, PIN - 676104 BY ADV SHRI.M.N.MANMADAN, CGC ``` ## **`RESPONDENTS/RESPONDENTS/PETITIONERS AND 3RD RESPONDENT:`** ``` 1SAFIYA, AGED 61 YEARS W/O PARAPPURATH HYDROSE HAJI,PARAPPURATH (H) TANALUR AMSOM, PAKARA DESOM, P.O. TIRUR, TIRUR TALUK, MALAPPURAM DISTRICT, PIN - 676307 2ROUBEELA, AGED 43 YEARS D/O PARAPPURATH HYDROSE HAJI,PARAPPURATH (H) TANALUR AMSOM,PAKARA DESOM, P.O. TIRUR, TIRUR TALUK, MALAPPURAM DISTRICT, PIN - 676307 3ABDU RAUF, AGED 41 YEARS S/O PARAPPURATH HYDROSE HAJI,PARAPPURATH (H) TANALUR AMSOM, PAKARA DESOM, P.O. TIRUR, TIRUR TALUK, MALAPPURAM DISTRICT, PIN - 676307 ``` ``` BY ADV VINOD RAVINDRANATH (CAVEATOR) ``` ``` THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 20.07.2023, ALONG WITH RCRev.66/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` RCR.66 and 129 of 2023 3 ## **A.K.JAYASANKARAN NAMBIAR & MOHAMMED NIAS C.P., JJ** **............................................................** ## **RCRev. Nos.66 and 129 of 2023** ............................................................. Dated this the 20[th] day of July, 2023 ## **O R D E R** ## Mohammed Nias C.P., J. The Union of India represented by the Superintendent of Post Offices, Tirur Division, have filed these revisions aggrieved by the orders of eviction passed under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, (for short, Act') in RCP Nos. 85 and 86 of 2016 filed by the respondents herein. The respondents/ landlords were the petitioners who sought eviction under Section 11(3) of the Act of the rooms entrusted to the first and the second respondents in the rent control petitions for the purpose of housing the Tirur Head Post Office and the Office of the Assistant Superintendent of Post Offices, Tirur Sub Division respectively, as per the lease agreements executed between the parties on 16.7.2005. RCP No.85/2016 was filed for evicting the first floor while RCP No.86/2016 pertains to the eviction of the second floor. The monthly rent fixed was Rs.1,000/- in RCP 86/2016 and Rs.20,000/- in RCP 85/2016. The landlords contended that the rent being paid was very low and in spite of their request, the rent has not been enhanced. They also pleaded a bonafide need for the third RCR.66 and 129 of 2023 4 respondent in the rent control petitions who was also a landlord working in the Gulf at that point in time and intending to settle down in the native place of the petitioners and wanted to start a textile business in the petition schedule building. It was also their contention that there were no other suitable buildings for the said purpose whereas there were other buildings available in Tirur to house the office of the respondents. 2. The revision petitioners/tenants had filed a counter statement contending that the petitions were bad as the Government of India was not arrayed as a party and that the need projected is not at all bonafide as there is no intention on the part of the landlords to start any business. It is also their contention that there was no other suitable or convenient building to shift their office Since the post office is a utility service, they prayed for dismissal of the rent control petitions. 3. The trial court considered both rent control petitions jointly. PWS 1 and 2 were examined and Exts.A1 to A8 were marked. No evidence was adduced on the side of the respondents. The tenants had also filed an application under Section 8 of the Arbitration and Conciliation Act for directing the landlords /petitioners to take recourse to Arbitration, which was dismissed by the Rent Control Court placing reliance on the judgment of the Hon’ble Supreme Court in ## **Ranjith Kumara Bose and another v. Ananya Chaudari and another [AIR** **2014 SC 1534]** . The Rent Controller thereafter considered the case and found that the need projected was bona fide and that the benefit of the second proviso to Section 11 of the Act was not available as the parties were the Government of India and government servants. Feeling aggrieved by the common judgment in both cases, the rent control appeals, as stated above, were filed. RCR.66 and 129 of 2023 5 4. The appellate court found that the argument that the rent control petitions were not maintainable in view of the Arbitration clause was not acceptable in view of the judgments in **Girindra Global Hospitality v. Manappuram Hotels (P) Ltd. [ILR 2022 (4) Kerala 144** and **Vidhya Drolia v. Durga Trading Corporation [(2021) 2 SCC 1]** . The argument of the tenants that the third respondent was arrayed as a respondent, though not a co-owner and therefore, it must be treated that he did not give consent for filing of the rent control petitions was also rejected as the notice itself was sent by the petitioners and the third respondent jointly. He had also opposed the appeal filed by the tenant. Therefore, the appellate authority found that it was with the consent of the third respondent and that he happened to be arrayed as a respondent only because of his non-availability at the time of filing the case. Regarding the question of bona fides, the appellate authority found that the evidence of PWs1 and 2 showed that the petitioners had no independent income and also that they did not have any other suitable building in their possession for starting the said business. The appellate court also relied on the judgment of this Court in **Raveendran M.N. and another v. V.V. Sivaprasad [2017 (4) KLJ 794]** and found that the bona fides of the need proposed by a Non-Resident Indian cannot be rejected as he was still working or that such a need, is not current or urgent one. The argument of the tenant that the need of the landlord was not bonafide since he had demanded an enhancement of rent was not accepted by the appellate authority,. The judgments of this Court in **Kurian K. Kuriakose v. Usha Cherian and others [2008 (1) KHC 731]** and **M/s.Aluminium Glass Ware Emporium and another v. Umanath Shenoy and another [2012 KHC 703]** were relied on for the said purpose. RCR.66 and 129 of 2023 6 5. As regards the first proviso to Section 11(3), the appellate authority rightly found that the burden was on the tenant to show the existence of an alternate building by the landlord for which they adduced no evidence. As regards the second proviso, the appellate authority found that since the respondents were the Government of India and officials under it, it had no application. Regarding the contention that the tenants were carrying on a public utility service, the appellate authority found that the Postal Department as such was not treated as an essential service by the Government or, at any rate, no such materials were adduced before the court. On the above grounds the court rejected the appeals and challenging the same, these revisions are preferred. 6. We have heard the learned counsel for the petitioners Sri. M.N.Manmadan and Sri.Vinod Ravindranath, who entered appearance for the respondents on caveat. 7. Having heard the learned counsel on either side, we find no ground at all to interfere with the orders of the courts below ordering eviction. Though the learned counsel for the revision petitioners reiterated the grounds taken before the authorities below, we find that they were considered in the correct perspective in the impugned judgments. The learned counsel stressed that the landlord was abroad and there is no likelihood of him coming down to start the business as alleged. As rightly found by the appellate authority, there is nothing wrong with the landlord having a prospective need, particularly when he wanted to settle down in his native town. We do not find anything that vitiates the need put forth. Likewise, the contention that the landlord's need was not bonafide as he had demanded an enhancement of rent also was rightly rejected by the appellate authority. Every landlord is entitled to get the fair rent applicable in the locality RCR.66 and 129 of 2023 7 from the tenant and a demand for the same cannot be taken as a reason to hold against the bona fide need sought by the landlord. As regards the first proviso to Section 11(3), there was no evidence adduced by the tenants to show that the landlords have any other building in their possession suitable for the purpose. As regards the second proviso, as rightly found by the authorities, it is inapplicable in the instant case. We do not find any ground warranting interference under Section 20 of the Act. Accordingly, the revisions are dismissed. At this juncture, the learned counsel for the petitioners prays for a year's time to vacate the premises which is stoutly opposed by the learned counsel for the landlord. However, after considering the nature of the activity in the tenanted premises and considering all circumstances, we deem it appropriate to grant nine months' time to the petitioners to vacate the premises subject to the following conditions:- “(i) The revision petitioners 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 they will surrender vacant possession of the petition scheduled building to the petitioners-landlords within nine months from the date of this order and that, they shall not induct third parties into possession of the petition scheduled building. ii) The revision petitioners shall deposit the damages for use and occupation, which shall be equal to the rent fixed, with entire arrears 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 month, without any default; RCR.66 and 129 of 2023 8 (iii) Needless to say, in the event of the revision petitioners 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 scheduled building will stand cancelled automatically, and the landlords will be at liberty to proceed with the execution of the order of eviction.” **Sd/-** ## **A.K.JAYASANKARAN NAMBIAR JUDGE** **Sd/-** **MOHAMMED NIAS C.P. JUDGE** okb/