V. Radhakrishnan @ Unni v. Keezhhatta Abdul Nazer

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY, THE 5TH DAY OF APRIL 2017/15TH CHAITHRA, 1939** **RCRev..No. 375 of 2016 () --------------------------** **AGAINST RCA 14/2012 of THE RENT CONTROL APPELLATE AUTHORITY (ADDL. DISTRICT COURT - II, KALPETTA DATED 10-08-2016** **AGAINST RCP 10/2011 of THE RENT CONTROLLER (MUNSIFF-MAGISTRATE) COURT,MANANTHAVADY DATED 31-05-2012** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** **-------------------------------------------** **V.RADHAKRISHNAN @ UNNI AGED 59 YEARS, S/O.GOPALAKRISHNAN, R/AT VALLIYIL HOUSE, PANAMARAM POST AND VILLAGE, MANANTHAVADY TALUK, WAYANAD DISTRICT.** **BY ADVS.SRI.P.S.SREEDHARAN PILLAI SRI.T.K.SANDEEP SRI.ARJUN SREEDHAR SRI.ARUN KRISHNA DHAN** **RESPONDENT/PETITIONER/RESPONDENT:** **------------------------------------** **KEEZHATTA ABDUL NAZER AGED 43 YEARS, S/O.MAMMU HAJEE, MAKKIYAD POST, KANHIRANGAD VILLAGE, MANANTHAVADY TALUK, WAYANAD DISTRICT, PIN 670 645.** **R1 BY ADV. SRI.B.KRISHNAN R1 BY ADV. SRI.R.PARTHASARATHY** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 05-04-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **VPS** ## **K.HARILAL & RAJA VIJAYARAGHAVAN V., JJ. -----------------------------------------------------R.C.Rev. No.375 of 2016** **----------------------------------------Dated this the 5[th] day of April, 2017** ## **O R D E R -----------** ## _Raja Vijayaraghavan, J._ - 1.Revision petitioner is the tenant. Faced with an order of eviction passed by the Rent Control Court, which was upheld by the Appellate Authority, he has approached this Court invoking Section 20 of the Kerala Buildings (Lease & Rent Control) Act, 1965 (hereinafter referred to as 'the Act' for short). - 2.To consider whether the orders concurrently passed by the authorities below are fraught with any illegality, irregularity or impropriety, we went through the materials on record. - 3.The evidence reveals that the petition schedule shop room forms part of a building, which was purchased by the R.C.Rev. No.375/2016 2 landlord in the year 2008. The tenant was occupying the shop room on the strength of a lease deed executed by the previous landlord. The respondent/landlord herein was a person, who, after working abroad for more than two decades had returned back to India for good, after having lost his job abroad due to acute recession. He has the financial wherewithal and the skill to do business. He has a large family comprising of aged parents, wife and children to support. Being an undergraduate, with enough experience in business, he intends to start a business in hardware materials in the building. Some rooms are already in his possession and he has preferred eviction petition to vacate the tenants who are occupying the other rooms. The entire space in the building is required to store and display his products. It has come out in evidence that there are about 13 shop rooms in the building and except for two rooms, all the shop rooms have been vacated by the tenant. R.C.Rev. No.375/2016 3 4.The tenant had fought the case tooth and nail. The bona fides of the need projected was challenged with all possible vehemence. The lack of specific pleading was highlighted to contend that the landlord had no clear idea as to the extent of space required for commencement of the hardware business. The main defence was structured around the 1[st] proviso to section 11 (3) of the Act and according to the tenant, when the landlord has suitable rooms in his possession, special reasons are to be stated. Absence of special reasons will interdict the Court in directing eviction, is the submission. - 5.Both the landlord as well as the tenant gave evidence and marked documents to prove their rival contentions. - 6.The Rent Control Court after evaluating the evidence held in favour of the landlord and upheld his claim for eviction on the ground of bona fide need. The tenant was held not entitled to the protection under the Act. In appeal by the R.C.Rev. No.375/2016 4 tenant, the Appellate Authority confirmed the findings of the Rent Control Court and confirmed the order of eviction. - 7.Heard Sri.Arun Krishna Dhan, the learned counsel appearing for the petitioner and Sri. B.Krishnan, the learned counsel appearing for the respondent. - 8.The learned counsel appearing for the petitioner would submit that the 1[st] proviso interdicts the Rent Control Court from issuing any direction if the landlord has another building of his own in the same Town, City or Village except where the Court is satisfied that for special reasons, in any particular case, it is just and proper to do so. No such special reasons exist in the instant case. Various other contentions are raised touching the merits of the case, but it was fairly submitted that the main contention revolves around the 1[st] proviso . - 9.The learned counsel appearing for the respondent would R.C.Rev. No.375/2016 5 submit that the landlord from the very inception has been asseverating that the entire building is required to commence the hardware business. It was pointed out that the Court below took note of the fact that though several rooms were vacated by the tenant, he has neither started any business nor has he let out the vacant shop rooms to other tenants. To highlight the importance of the petition schedule shop room, it is pointed out that the shop room is situated right in the center in the ground floor. This finding of the Court below that the landlord has made out special reasons cannot be faulted according to the learned counsel. Reminding us of the contours of jurisdiction under section 20 of the Act, it is submitted that interference is unwarranted . 10.We have considered the submissions advanced. The first proviso to Section 11(3) of the Act puts an embargo on the Rent Control Court to grant vacant possession to the landlord on the ground of bona fide need if the landlord R.C.Rev. No.375/2016 6 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. The burden of proving special reason is on the landlord. A combined reading of the provision and the proviso would indicate beyond doubt that when it is established that the landlord has another building of his own in his possession for his occupation for the proposed need, he would have to satisfy the Rent Control Court that there are special reasons for not occupying the said premises. It is by now settled that to non-suit the landlord, the vacant building should be of such a character, which would meet the requirements of the landlord. - 11.We find from the petition as well as the evidence let in that the need projected is to run a hardware shop in the entire building. He has stated in the petition itself that shop room No. XI/ 388 and 392 on the first floor and XI/ R.C.Rev. No.375/2016 7 1379 & 1380 in the rear side, which are in his possession, are not sufficient to house the proposed hardware business. He has also stated that he has initiated eviction proceedings to vacate the tenants who are occupying the nearby rooms. He has also stated that he intends to market items such as Cement, Iron, Tiles, Sand, Sanitary items, plumbing and electrical items, paints, roof sheets, fancy lights etc., and that he requires a vast area to store and display the said items. It appears to be a dream project of a person who after spending a good part of his life abroad has decided to commence a business in his name in his own country. The courts below after anxiously considering the evidence of the landlord found his need to be genuine. When the entire building is required for satisfying the need of the landlord and when the need is found bona fide and not a pretext, the Court will not be justified in directing the landlord to compromise on his need and make do with lesser facilities. The Appellate R.C.Rev. No.375/2016 8 Authority after re-appreciating the evidence has held that the landlord has given special reasons for seeking eviction of the shop room despite the fact that there are vacant rooms in his possession . 12.In **S.S.Gupta v. Mahesh C.Gupta** [1999 (6) SCC 222], the Apex Court had held that once the court is satisfied of the bona fides of the need of the landlord for premises or additional premises by applying objective standards, then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the court. The court would permit the landlord or satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such need. In short, the concept of bona fide R.C.Rev. No.375/2016 9 need or genuine requirement needs a practical approach instructed by realities of life. An approach either too liberal or too conservative or pedantic must be guarded against. - 13.It was after considering all these relevant aspects that the Appellate Authority, which is the final fact finding authority, has held that the landlord has made out special reasons for seeking eviction of the petition schedule shop room. The said finding was arrived at on the basis of a proper and legal appreciation of facts and law. The law does not command the landlord to make his choice at the dictates of the tenant to protect his occupancy. We find no jurisdictional error in the findings of the court below. It cannot be said that the order suffers from any illegality, irregularity or impropriety. - 14.Coming to the second proviso to Section 11(3), the burden to establish both the ingredients, which are R.C.Rev. No.375/2016 10 conjunctive, is on the tenant. Both the courts below have held that the tenant has failed to prove that he is entitled to the protection. We do not find any reason to take a divergent view. 15.After having given out anxious consideration to the manner in which the Trial Court as well as the Appellate Court have marshalled the evidence and have appreciated the various aspects of the case, it appears to us that no interference is warranted in exercise of the rarefied revisional jurisdiction. It does not appear that the courts below have relied on irrelevant considerations or have ignored relevant materials nor can it be said that they have applied wrong principles of law. It is trite that the findings on fact and appreciation of evidence should not and cannot be interfered with in revision, unless the same is perverse and opposed to all tenets of law. - 16.Having regard to the aforesaid, this revision petition fails R.C.Rev. No.375/2016 11 and the same is dismissed. - 17.The learned counsel appearing for the petitioner seeks for a breathing time to vacate the petition schedule shop room. This request is opposed by the learned counsel appearing for the respondents. - 18.Having regard to all the facts and circumstances, we are of the view that the revision petitioner can be granted time till 31.12.2017, to vacate the premises, but on terms: - a) The petitioner/tenant shall remit the entire arrears as on today before the executing court within three weeks from today and file an affidavit before the executing court within fourteen days from today unconditionally undertaking to surrender vacant possession of the premises to the respondent/landlord on or before 31.12.2017. - b) He shall pay charges towards use and occupation of the shop rooms at the current rent rate from today till they give vacant possession of the premises to the respondent/landlord. R.C.Rev. No.375/2016 12 - c) Execution proceedings, if any, pending before the executing court shall be kept in abeyance for a period of eight months, i.e., till 31.12.2017, if the aforesaid conditions are satisfied. - d) If there is default in performing any of the conditions imposed in clauses (a) and (b) above, the benefit given to the tenant as per this order will stand recalled automatically and the executing court shall effect delivery forthwith. **Sd/-** **K.HARILAL, JUDGE** **sd/-** **RAJA VIJAYARAGHAVAN V. JUDGE** Ps/2/4/2017