Unni K.D. v. Narasimha Naik

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.HARIPRASAD & THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 08TH DAY OF APRIL, 2021/18TH CHAITHRA 1943 RCRev..No.10 OF 2021 AGAINST THE JUDGMENT DATED 05.12.2019 IN RCA NO.17/2017 ON THE FILE OF THE ADDITIONAL RENT CONTROL APPELLATE AUTHORITY-1, KOTTAYAM AGAINST THE ORDER IN RCP NO.14/2015 DATED 22-03-2017 ON THE FILE OF THE RENT CONTROL COURT, VAIKOM ## REVISION PETITIONER/APPELLANT/RESPONDENT: UNNI K.D. AGED 53 YEARS S/O.DIVAKARAN,ANIZHAM HOUSE,VAIKOM.P.O, NADUVILA VILLAGE,PADINJATTUMCHERI, VADAKKEMURI,VAIKOM TALUK,KOTTAYAM-686141. BY ADVS. SRI.GEORGE MATHEW SRI.M.D.SASIKUMARAN SHRI.PRAVEEN S. SHRI.SUNIL KUMAR A.G SRI.DIPU JAMES SHRI.MATHEW K.T. ## RESPONDENT/RESPONDENT/PETITIONER: NARASIMHA NAIK, AGED 89 YEARS, S/O.SREENIVASANAIK,PANTHALLOOR HOUSE, VAIKOM.P.O, PADINJATTUMCHERI,PADINJAREMURI, VAIKOM VILLAGE AND TALUK-686141. R1 BY ADV. SRI.G.SREEKUMAR (CHELUR) THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 24-03-2021, THE COURT ON 8-4-2021 PASSED THE FOLLOWING: R.C.R.No.10 of 2021 2 **==> picture [82 x 10] intentionally omitted <==** Dated this the 8[th] day of April, 2021 ... Ziyad Rahman A.A., J. This Revision Petition is filed by the respondent/tenant in R.C.P.No.14 of 2015 on the file of the Rent Control Court, Vaikom. The said Rent Control Petition was filed by the respondent/landlord seeking eviction of the tenant under Sections 11(4)((ii) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as ‘the Act’). The said Rent Control Petition was allowed by ordering eviction of the tenant. Challenging the same, R.C.A. No.17 of 2017 was filed by the Revision Petitioner herein before the Rent Control Appellate Authority-1 Kottayam and the said appeal was also dismissed confirming the order of eviction passed by the Rent Control Court. This Revision is filed by the tenant in the above circumstances. 2. The case of the landlord is as follows: The petition schedule building was let out by the landlord to the tenant as per lease agreement dated R.C.R.No.10 of 2021 3 4.10.2012 for a monthly rent of Rs.2,700/-. The tenant is running a bakery in the petition schedule building. On 25.10.2015, the tenant made certain material alterations in the petition schedule building, without the knowledge and consent of the landlord. According to the landlord, the alterations carried out by the tenant amounted to structural alteration resulting in damage and it diminishes the value as well as the utility of the building. The aforesaid alterations include removal of the floor using JCB for laying tiles thereon, enclosing the open verandah by blocking the passage through the same to the adjacent shop rooms owned by the landlord and also the act of installing a water tank over the roof of the petition schedule building and laying pipes from the said water tank, after drilling holes in the concrete roof of the building to the bakery. It is contended by the landlord that the aforesaid works carried out by the tenant was unauthorized and such works also resulted in proceedings being initiated against the landlord by the Municipality for unauthorized constructions. Thus it was contended that the constructions carried out by the R.C.R.No.10 of 2021 4 tenant materially affected the value and utility of the petition schedule building and therefore he is entitled for an order of eviction as contemplated under Section 11(4)(ii) of the Act. 3. The respondent/tenant filed an objection disputing the averments in the petition. It was contended that, all the works carried out by him were with the knowledge and consent of the landlord. The landlord is residing just behind the petition schedule building and he was aware of the works carried out. It was also contended that, the landlord had given another shop room situated on the northern side of the petition schedule building to a person called Aziz who is running the business of steel utensils in the said building. The said Aziz had enclosed the veranda portion of his shop room and installed shutters and thereby obstructing the passage through verandah. However, the landlord had not taken any steps against the said Aziz and therefore it was contended by the tenant that the proceedings now initiated against the tenant is without any bona fides. It is further contended that on 1.10.2015, the tenant along with one R.C.R.No.10 of 2021 5 G.Sreekumaran Nair held a discussion about the obstruction caused by the additional construction made by the said Aziz and during the said discussions, the landlord granted permission to the tenant to carryout the works including plumbing works for modernizing the bakery. It was contended that, the constructions were carried out by the tenant in furtherance of the said consent. It was also contended that, the tenant has already spent a total amount of Rs.4,18,090/- for renovating the bakery and on account of the renovation, the petition schedule building has become more attractive and modern. Therefore, it was contended that the works carried out by the tenant did not result in reduction of value or utility of the petition schedule room, but on the other hand, it resulted in value addition to the petition schedule building. On the above grounds, he prayed for dismissal of the Rent Control Petition. 4. The evidence in this case consists of oral evidence of PW1 to PW3, documentary evidence of Exts. A1 to A3, X1 to X5, and report of the Advocate Commissioner viz.C1, C2 and C2(a). From the side of the R.C.R.No.10 of 2021 6 respondent DW1 and DW2 were examined and Ext.B1 was marked. 5. After the trial, the Rent Control Court came to the conclusion that, the works carried out by the tenant is affecting the value and utility of the building materially and permanently. Therefore it was found that the landlord is entitled for an order of eviction under Sections 11(4)(ii) of the Act. Accordingly, the Rent Control Petition was allowed. 6. Challenging the said finding, the tenant filed R.C.A.No.17 of 2017 before the Rent Control Appellate Authority-1, Kottayam. 7. After hearing both sides, the said appeal was dismissed by confirming the findings of the Rent Control Court. This Revision Petition is filed by the tenant in the above circumstances. 8. Heard Sri. George Mathew, the learned counsel for the Revision Petitioner and Shri. Sreekumar G. Chelur, the learned counsel for the respondent. 9. The main contention urged by the learned counsel for the tenant is that, under no circumstances, the constructions carried out by the tenant can be R.C.R.No.10 of 2021 7 treated as something which attracts the stipulations contained in Section 11(4)(ii) of the Act. According to the learned counsel for the petitioner, the works carried out by the tenant were with a view to modernize and renovate the bakery which was functioning in an old building and on account of the works carried out by him, the value thereof has increased substantially. It was further argued that, all the said constructions were carried out by him with the knowledge and consent of the landlord and therefore there is acquiescence on his part. 10. The learned counsel for the respondent on the other hand opposed the said contentions and argued that the question of destruction or reduction of value or utility of the building materially and permanently, is a matter to be viewed from the point of view of the landlord. According to him, the works carried out by the tenant are permanent in nature and those are also destructive, which diminishes the value thereof substantially. Since the landlord has to maintain the building even if the tenant vacates the premises, due to nature of works now carried out by the tenant, he R.C.R.No.10 of 2021 8 may find it difficult to rent it out in such a situation, to any other tenant. According to him, the works carried out, particularly the act of laying pipes through the holes created by drilling the concrete roof of the building, are having irreversible consequences as the same cannot be repaired effectively. 11. On examining the entire facts and circumstances of this case, it can be seen that the dispute in this case is in relation to three types of alterations said to have been made by the tenant namely (i) enclosing of verandah (ii) digging of floors of the building by using JCB and lying tiles thereon and (iii) installation of water tank over the roof of the building and laying pipes through the holes created after drilling the concrete roof. As the construction relating to the digging of holes on the concrete roof is more severe, the impact of the same is to be considered first. It is an admitted fact that, the tenant had created four holes after drilling the concrete roof for the purpose of laying pipes to the petition schedule building from the water tank installed on the top of the building. The specific R.C.R.No.10 of 2021 9 details of the said activities are mentioned in Ext.C2 ## Commission Report and it is mentioned as follows: ഹര്‍ജിപ്പട്ടികയുടെ� മുറിയുടെ� മുകളില്‍ നിന്നും വാര്‍ക്ക തുളചച പുതിയതായി സ്ഥാപിച്ച വാട്ടര്‍ �ാങ്കില്‍ നിന്നുമുള്ള 4 പൈപപ്പുകള്‍ മുറിയ്ക്കുള്ളിലേ&കക ടെകാണ്ടു വന്നിട്ടുണട. കാഴ്ചയില്‍ പുതിയടെതനന ലേതാന്നിക്കുന്ന ലേ.ല്‍പ്പറഞ്ഞ 4 പൈപപ്പുകളില്‍ 2 എണ്ണം 1 ഇഞച പൈപപ്പും 2 3/4 ഇഞ എണ്ണം ച പൈപപ്പുകളു.ാണ്. ഉലേ;ശം ഒലേന്നാ രലേണ്ടാ ആഴ്ചകളുടെ� പഴക്കം ഇതിടെA പണികക ഉണട എനന .നസ്സി&ാക്കാം. The contention of the learned counsel for the tenant in respect of the same is that, going by the oral evidence of the Advocate Commissioner it is evident that, on account of the aforesaid act of drilling holes, no damage is sustained to the room. He points out the relevant portion of the deposition of the Advocate Commissioner while he was examined as PW3. It was further contended that, the question whether such an act resulted in destruction or diminition of the building, is a matter to be verified through an expert. In this case, the landlord had not taken any steps to get the said works examined by an expert and therefore in the absence of such evidence, it cannot be concluded that it resulted in diminishing or destruction of the value and utility of the petition schedule building materially and permanently. In support of the said contentions, the learned counsel for the landlord R.C.R.No.10 of 2021 10 relied upon the judgment reported in Sreenivasan T.K. v. Rugmini and Others [2017(4)KLT 391]. 12. On going through the factual situations under which the Sreenivasan’s judgment is rendered, it can be seen that, the observations relied upon by this Court in that case, were in respect of the holes put by the tenant on the walls of an old building. In our view, putting holes on the walls of building is completely different from putting holes on the concrete roof of the building. This is particularly because, the holes created on the wall of a building can be rectified without any long standing damages, but on the other hand holes created on a concrete roof is a matter of permanent alteration, which cannot be removed at all without any consequences. Apart from the above, such creation of holes may result in leakage of the roof in the long run. On account of this, such a work has to be treated as something which is permanent in nature. Merely because of the reason that, as on the date of inspection no damage was sustained to the roof, it cannot be concluded that, the same will not have any impact in the long run. In this regard, the contention R.C.R.No.10 of 2021 11 put forward by the learned counsel for the landlord is that, it is an aspect to be viewed from the point of view of the landlord. Therefore, according to him, as far as the landlord is concerned, the said alteration resulted in permanent and material impact upon his building and therefore even if the tenants vacates the building, he may find it difficult to let out the building to any other tenants. It is also pointed out that, this work may result in leakage of the building as well. 13. In this regard, it is to be noted that, going by the stipulation contained under Section 11(4)(ii) of the Act, if the tenant uses the building in such a manner as to destroy or reduce its value or utility materially and permanently, the landlord is entitled for an order of eviction. From the careful scrutiny of the said provision, it is evident that in the said provision, importance given is on the act of using the building in the manner prescribed therein. That would indicate that, it is not confined to the question as to whether an act of construction or alteration resulted in damage at the time of making such construction or R.C.R.No.10 of 2021 12 alteration. It also takes into consideration, the use of the building with such constructions/alterations and the impact of such constructions/alterations. Therefore, merely because of the reason that, no immediate damage is sustained to the building on account of the works carried out, it cannot be said that the stipulation contained in the said provision is not attracted. Going by the nature of the works carried out by the tenant, it is likely to have serious impact upon the building during long run. It is a relevant factor which is to be taken into consideration when this issue is adjudicated. In this case, as the tenant had admittedly drilled four holes on the concrete roof of the building, which is an irreversible process and the same cannot be restored into its original position. It is also likely to cause damage to the roof in the future. Hence, from the nature of consequences emanating therefrom, it can be safely concluded even in the absence of any expert evidence that, it resulted in destruction to the building, permanently and materially. In the above circumstances, we have no hesitation to conclude that, the aforesaid act of the R.C.R.No.10 of 2021 13 tenant is an act resulting in destruction and reduction of the value and utility of the petition schedule building materially and permanently. Therefore, the finding of the Rent Control Authorities in this regard is not liable to be interfered with. It was further contended by the learned counsel for the tenant that, the aforesaid constructions were carried out after obtaining the consent from the landlord. In support of the same, he contends that, the aforesaid works were carried out by him when the landlord gave him consent during the discussion held with the landlord along with one Sreekumaran Nair on 1.10.2015. During the cross examination of PW1(landlord), a specific suggestion was also put to him by the learned counsel for the tenant and the landlord had denied the said suggestion. Since the question of consent is a matter which is to be proved by the tenant by adducing proper evidence, in the absence of any evidence, it is only to be rejected. In this case, even though, he had specifically stated that the discussion was held in the presence of one Sreekumaran Nair, he was never examined and this was one of the reasons relied upon by the Rent Control R.C.R.No.10 of 2021 14 Authorities to discard the said contention. We do not find any reason to arrive at a different conclusion in this proceeding, where the scope of interference is very limited, being a Revision under Section 20 of the Kerala Buildings (Lease and Rent Control) Act. 14. As we have already found that the act of digging holes on the roof of the building, is a matter attracting the consequences under Section 11(4)(ii) of the Act, further discussion on the other constructions carried out by the tenant may not necessary. However, we take note that, even all those constructions were found to be resulting in destruction and reduction of value and utility of the petition schedule building by the Rent Control Authorities, after appreciating the evidence available on record. However, we find certain force in the contention of the tenant that, renovation of the building by laying tiles and modernizing the petition schedule room has enhanced the value of the petition schedule building. However, one of the contentions of the landlord in this regard, is about the manner in which such works were carried out. According to him, for the purpose of carrying out the R.C.R.No.10 of 2021 15 works, a JCB was used inside the petition schedule building, which is very old. The possibility of adverse impacts on the stability of such an old building during the process of such activity cannot be ruled out. As mentioned above, both the Rent Control Authorities, after appreciating the evidence, have concurrently found that, the said acts attract the rigour of Section 11(4)(ii). In a proceeding under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, this Court is not supposed to re-appreciate evidence and arrive at a finding on factual disputes. In the above circumstances, we do not find any ground to interfere with the order of eviction concurrently passed by the Rent Control Authorities. However, the learned counsel for the tenant submits that he requires some time for vacating the premises and to find out alternate accommodation for his business. In the facts and circumstances of this case, we feel that the tenant can be given some time to vacate the premises. Accordingly the tenant is granted time till 31.12.2021 for vacating the premises subject to the following conditions: R.C.R.No.10 of 2021 16 i) The Revision Petitioner/tenant shall file an undertaking before the Rent Control Court, within a period of one month from today, to the effect that, they will vacate the petition schedule premises on or before 31.12.2021; ii) The Revision Petitioner/tenant shall pay the entire arrears of rent as on the date and also shall continue to pay the contract rent as compensation for use and occupation of the building till they vacate the premises; iii) If any of the above two conditions are violated, the landlord shall be free to proceed with the execution of the order of eviction. ## **Sd/-** A.HARIPRASAD JUDGE ## **Sd/-** ## **pkk** ZIYAD RAHMAN A.A. JUDGE