Vijayalekshmi Ammal and Others v. Thankamma and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 17TH DECEMBER 2010 / 26TH AGRAHAYANA 1932 RCRev..No. 59 of 2008(F) ---------------------------IA.877/2007 IN RCA.30/2000 of II ADDL. RENT CONTROL APPELLATE AUTHORITY, KOLLAM RCP.3/2000 of RENT CONTROL COURT, KOLLAM .................... ## PETITIONERS/PETITIONERS: -------------------------------- 1. VIJAYALEKSHMI AMMAL W/O.VEERAMANI AYYAR, THOTTATHIL MEKKU MADATHIL PADANAYARKULANGARA, THEKKU MURI KARUNAGAPPALLY VILLAGE, KARUNAGAPPALLY TALUK. 2. RAMAMOORTHY, S/O.VEERAMANI AYYAR, -DO- [DIED] * THE SUPPLEMENTAL PETITIONERS P3 TO P5 ARE IMPLEADED SUPPL. P3:M. LEKHA, W/O LATE RAMAMOORTHY, THOTTATHIL MEKKE MADOM, PADA SOUTH, KARUNAGAPALLY, KOLLAM DIST. SUPPL. P4:R. VEERAMONI IYER ALIAS VIGHNESH, (MINOR) 11 YEARS, (REPRESENTED BY MOTHER 3RD PETITIONER) SUPPL. P5:L. ABHIRAMI (MINOR) AGED 7 YEARS, -DO- -DO- BY ADV. SRI.R.PARTHASARATHY *[SUPPLEMENTAL REVISION PETITIONERS 3 TO 5 ARE IMPLEADED AS THE LRS OF DECEASED 2ND REVISION PETITIONER, AS PER ORDER DATED 21/01/10 IN I.A.92/2010 IN RCR.59/08] RCRev..No. 59 of 2008 (B) -2- RESPONDENT(S): RESPONDENTS ------------------------------------- - ** 1. THANKAMMA, D/O.KALYANI, KAROTTU VEEDU PADANAYARKULANGARA VILLAGE, KARUNAGAPPALLY TALUK. [DIED] 2. M.C.RADHAKRISHNAN, S/O.CHELLAPPAN, -DONOW RESIDING AT PRAVEENA PADANAYARKULANGARA NORTH KARUNAGAPPALLY TALUK, KOLLAM. 3. M.DASAN, S/O.MUTHYYA, IDEAL WATCH WORKS AND RADIO SERVICE, PADANAYARKULANGARA THEKKUM MURI KARUNAGAPPALLY TALUK, KOLLAM NOW RESIDING AT SHAJAHAN MANZIL, EDAKKULANGARA P.O. KARUNAGAPPALLY. 4. LEELA DEVI, D/O.THANKAMMA, RESIDING AT T.C.13/1598, MEDICAL COLLEGE P.O. KUMARAPURAM, THIRUVANANTHAPURAM. 5. M.C.PRASANNAN, S/O.CHELLAPPAN RESIDING AT KAROTTU VEEDU, PADANAYARKULANGARA SOUTH, AYANIVELIKULANGARA VILLAGE KARUNAGAPPALLY TALUK. 6. LEENA DEVI, D/O.THANKAMMA, RESIDING AT HOUSE NO.150, AMBALAPUZHA P.O., THOTTAPPALLY ALAPUZHA. 7. GIRIJA, D/O.THANKAMMA, KAROTTU VEEDU PADANAYARKULANGARA SOUTH, AYANIVELIKULANGARA VILLAGE, KARUNAGAPPALLY TALUK. 8. NEENA, D/O.THANKAMMA, “SHANKAR NIVAS”, EDAKKULANGARA P.O., KARUNAGAPPALLY TALUK. RCRev..No. 59 of 2008 (B) -3- **[R2 AND R4 TO R8 ARE RECORDED AS THE LEGAL HEIRS OF THE FIRST RESPONDENT VIDE ORDER DATED 13/12/10 IN MEMO DATED 20/08/10 VIDE C.F.NO.3285/10 DATED 09/09/2010.] ADV. SRI.C.HARIKUMAR FOR R1,2,4,6&8 SRI.MANOJ RAJAGOPAL FOR R1,2,4,6 & 8 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 17/12/2010, ALONG WITH RCR NO.67 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING. PIUS C. KURIAKOSE & N. K. BALAKRISHNAN, JJ. -----------------------------------------------R. C. R. Nos.59 & 67 of 2008 -----------------------------------------------Dated this the 17[th] day of December, 2010 ## **ORDER** ## _Pius C. Kuriakose, J_ Both these revision petitions are filed by the landladies who were unsuccessful before the Rent Control Appellate Authority. They sought to evict the tenants on the grounds of arrears of rent under Section 11(2)(b), bona fide need for own occupation under Section 11(3), subletting under Section 11(4)(i), tenants having other buildings of their own in possession under Section 11(4)(iii) and the ground of cessation of occupation under Section 11(4)(v). It was submitted at the bar by the learned counsel on both sides that it is only the grounds under sub Section 3 of Section 11, clause 1 of sub Section 4 of Section 11 and clause 3 of sub Section 4 of Section 11 which survive for consideration R. C. R. Nos.59 & 67 of 2008 -2- by us in these revisions. The need projected by the landladies in the context of ground under sub Section 3 of Section 11 was that the building is needed bona fide for own occupation by Smt.Vijayalekshmi Ammal, the first revision petitioner, so that she can conduct a ladies store. The bona fides of the above need was disputed by the tenants who contended that they are entitled to the protection of the second proviso to sub Section 3 of Section 11. Though not specifically with reference to the first proviso to sub Section 3 of Section 11, it was contended by the tenants that the need is not bona fide as the landladies are having other buildings. The allegation of the landladies in the context of ground of subletting was that the 8[th] respondent Sri.M.Dasan is a sublessee in unauthorised possession of the building and that the sublease in favour of Dasan was not terminated in spite of statutory notice issued under first R. C. R. Nos.59 & 67 of 2008 -3- proviso to Section 11(4)(i). The defence of the tenants was that Dasan is not a sublessee or transferee, but Dasan was for all practical purposes a member of the family of the tenants who was brought up from his early childhood days as a family member by Chellappan, the predecessor in interest of the tenants. The allegation of the landladies regarding the ground under Section 11(4)(iii) was that the first respondent in the RCP Smt.Thankamma was having other buildings in the town and that such buildings can be used for the purposes to which they are presently putting the present scheduled building. The above allegation was denied by respondents 1, 2 and 8 in the RCP. The Rent Control Court enquired into the RCP and on appreciating the evidence came on record, that court would in the first instance order eviction on the grounds of Section 11(3) and Section 11(4)(3). The tenants preferred an appeal to the R. C. R. Nos.59 & 67 of 2008 -4- learned Rent Control Appellate Authority. The learned Appellate Authority would set aside the order of eviction passed by the Rent Control Court and remand the RCP to the Rent Control Court. The Rent Control Court would take a fresh decision ordering eviction under Section 11(4)(i) and 11(4)(iii) and declining eviction under Section 11(3) which had been ordered initially. The tenant alone preferred appeal to the Rent Control Appellate Authority against the above eviction order passed by the Rent Control Court. The landlord resisting that appeal would not only support the eviction order passed by the Rent Control Court but would also canvass for an order of eviction under Section 11(3) urging that the Rent Control Court should have ordered eviction under Section 11(3) also. The learned Appellate Authority would allow the appeal filed by the tenants completely by the judgment which is impugned in R. C. R. Nos.59 & 67 of 2008 -5- RCR.67/08. On noticing that in the above judgment, the learned Appellate Authority had not adverted to the arguments addressed by the landlord in support of the claim for eviction under Section 11(3), the landlord filed I.A.877/07 seeking a review of the judgment to the extent of ordering eviction under Section 11(3). The learned Appellate Authority would dismiss I.A.877/07 and it is that order which is challenged by the landladies in RCR.59/08. 2. In these revisions various grounds have been raised by the landladies assailing the judgment/order impugned therein. Sri.C.Jayachandran, the learned counsel for the revision petitioners addressed strenuous arguments before us in support of the grounds raised in the two revision petitions. According to him, the judgment of the Rent Control Appellate Authority allowing the appeal preferred by the tenants is vitiated by illegality, irregularity or R. C. R. Nos.59 & 67 of 2008 -6- impropriety as envisaged by Section 20 of Act 2 of 1965. The appreciation of evidence by the learned Appellate Authority according to the learned counsel was thoroughly erroneous and this has resulted in injustice to the landladies. Sri.Jayachandran was even more emphatic in his submissions with reference to RCR.59/08. Placing strong reliance on the judgment of a Division Bench of this Court in _Santha v. 1st Additional District Judge (1994(1) KLT 516)_ and that of another Division Bench of this Court in _Ganesh v. Varghese (2005(1) KLT 282)_ , Sri.Jayachandran argued that the learned Appellate Authority's view that in the absence of a memorandum of cross objections filed by the landladies they are not entitled to challenge the correctness of the order of the Rent Control Court declining eviction under Section 11(3), is erroneous. 3. All the submissions of Sri.Jayachandran were very R. C. R. Nos.59 & 67 of 2008 -7- forcefully resisted by Sri.Manoj Rajagopal, the learned counsel for the respondent/tenants. Reminding us of the contours of the revisional jurisdiction under Section 20 of Act 2 of 1965 Sri.Manoj Rajagopal submitted that in the present case there is absolutely no warrant for invocation of the above jurisdiction at all. We have very anxiously considered the rival submissions addressed at the Bar. We have gone through the judgment of the Appellate Authority which is impugned in RCR No.67/08 as well as the order which is impugned in RCR 59/08. We have also gone through the order of the Rent Control Court which was interfered by the learned Appellate Authority in RCA.30/2000. We have considered those items of evidence to which our attention was drawn by the learned counsel in their submissions. We shall first deal with the judgment of the Rent Control Appellate Authority declining the order of R. C. R. Nos.59 & 67 of 2008 -8- eviction which was sought on the ground of subletting. 4. According to us, the decision of the Rent Control Appellate Authority to decline eviction on the ground of subletting was perfectly justified on the evidence which had come on record in the case. It had become evident that Sri.Dasan, the alleged sub lessee was residing along with the landladies in their house and had been brought up as a member of the family by Sri.Chellappan from his early childhood days. It is in evidence that Sri.Dasan is attending to the business conducted in the petition schedule building on behalf of the tenants. In order that eviction ground under Section 11(iv)(i) is established what is necessary is that there should either be objectionable subletting or objectionable transfer of possession. The evidence in this case falls short of holding that either of the above is established. We do not find any illegality, irregularity or R. C. R. Nos.59 & 67 of 2008 -9- impropriety about the decision of the learned Appellate Authority in declining eviction under Section 11(iv)(i). 5. We shall now come to the eviction ground under Section 11(iv)(iii). According to us, the legislative intentment underlying Section 11(4)(iii) is that in a situation where there is acute accommodation shortage, a tenant should not be allowed the luxury of having in his possession more buildings than reasonably sufficient for his purposes. It was on the basis of two buildings situated at Karottmukku (also called Kannettimukku) at a distance of 700 metres from the petition schedule building that the Rent Control Court ordered eviction on the ground under Section 11(4) (iii). Both the petition schedule building as well as the buildings at Kannettumukku are situated within the area of the same ward of Karunagappally Panchayat. The Advocate Commissioner in his report Ext.C1 submitted at the instance R. C. R. Nos.59 & 67 of 2008 -10- of the tenant reported that in terms of commercial potentiality kannettumukku area is not as potential as the area of the petition schedule building which is situated in the main junction of Karunagappalli town, but he further reported that it would be possible for the tenant to continue with his avocation of watch repairing in the rooms at Kannettumukku also. It was accepting the above report mainly that the learned Rent Control Court concluded that eviction ground under Section 11(4)(iii) is established in this case. The learned Appellate Authority, however, interfered with the decision of the Rent Control Court taking the view that there is legislative insistence of the tenant possessing other buildings in the same city, town or village. According to the learned Appellate Authority, in the instant case what has become evident is only that the tenant is possessing other buildings in the same Panchayat. In that view of the R. C. R. Nos.59 & 67 of 2008 -11- matter, the learned Appellate Authority would reverse the order of the Rent Control Court. We find it extremely difficult to subscribe to the view of the learned Appellate Authority that in order that an eviction ground under Section 11(4)(iii) is established, possession of buildings by a tenant in addition to the building which is subject matter of the RCP in the same Panchayath area will not be sufficient. According to us, the learned Appellate Authority was rather pedantic in its view. In fact, the learned counsel for the respondent would endeavour to support the reasoning of the learned Appellate Authority by referring to the schedule to SRO 106 notified by the Government under Section 3 of Act 2 of 1965 bringing various area within the state under the purview of the Rent Control Act. According to the learned counsel the word “city” has been used in Section 11(4)(iii) to mean a city corporation and the word “town” has been R. C. R. Nos.59 & 67 of 2008 -12- used to mean the municipal town. Counsel pointed out that the word “Panchayath” is significantly absent in the section. Instead it is a word “village” that is used. The argument of the learned counsel is that when the area of the petition schedule building is neither a corporation nor a municipal town then in order that eviction ground under Section 11(4) (iii) is established the additional building possessed by the tenant should be situated in the same revenue village as the petition schedule building itself. Counsel submitted that the petition schedule building is situated in Karunagappally village while the two buildings possessed by the tenants were situated in Ayinivelikulangara, another revenue village. We are unable to accept the argument of the learned counsel for the respondent either. It is clear to our mind that the words “city”, “town” or “village” used in Section 11 (4)(iii) have been used for referring to large cities, towns R. C. R. Nos.59 & 67 of 2008 -13- which are smaller than cities and the word “village” particularly have been referred to as “Gramas” which do not qualify as towns. In other words, the words “city”, “town” and “village” have been used in the statute with the meanings given to them in common parlance and not as per the law relating to administration of local authorities such as the Municipalities Act or the Panchayaths Act or in the rules relating to revenue administration. 6. But the above view of ours cannot lead to restoration of the eviction order given by the Rent Control Court under Section 11(4)(iii) in favour of the landladies. We must refer to another argument which was raised before us very seriously by the learned counsel for the respondent. That argument was that the tenant did not have possession. 7. Going by Ext.A9 document, the building covered by Ext.A9 is not under the vacant possession of the tenant, but R. C. R. Nos.59 & 67 of 2008 -14- was at all material times (the time of institution of the RCP) occupied by a tenant of the petition schedule building. The statutory provision does not admit of any doubt that what is required to constitute a ground for eviction under Section 11 (4)(iii) is possession by the tenant of a building already under his occupation or available for his occupation. Ownership by tenant over the said building is not even necessary. We are convinced from the materials actually available on record that the tenants in this case did not have actual possession over any other building making them liable to be evicted under Section 11(4)(iii) of Act 2 of 1965. It should not be forgotten that legislative emphasis under Section 11(4)(iii) is not on ownership but is on possession. The Rule that possession will follow title cannot have any application in the present case where evidently possession of the other buildings were with tenants even at the time of R. C. R. Nos.59 & 67 of 2008 -15- commencement of the RCA. Hence, we approve the decision of the learned Appellate Authority to decline order of eviction under Section 11(4)(iii) albeit on a different reason. 8. Now we come to the question whether the tenants are liable to be evicted on the ground under Section 11(3) of Act 2 of 1965. The learned Rent Control Appellate Authority did not permit the landladies even to challenge the correctness of the order of the Rent Control Court declining eviction on the ground under sub Section 3 of Section 11 for the reason that landladies had not filed even a memorandum of cross objections against the decision of the Rent Control Court declining eviction on that ground. The view of the learned Appellate Authority in the above context is clearly erroneous and runs contrary to decisions of this Court in Santha v. 1st Additional District Judge (1994(1) KLT 516) and Ganesh v. Varghese (2005(1) KLT 282). The R. C. R. Nos.59 & 67 of 2008 -16- learned Appellate Authority was bound to consider the merits of the eviction ground invoked by the landladies under Section 11(3) and the said authority having not done so, its decision not to examine the merit of the ground under Section 11(3) including the order which is impugned in RCR 59/08 is illegal irregular and improper. 9. We shall now proceed to examine the merits of the ground invoked by the landladies under sub Section 3 of Section 11. As already stated, the need projected was that the building is needed for the occupation of Smt.Vijayalakshmi Ammal, the first revision petitioner so that she can conduct a ladies corner there. The bona fides of the need was certainly disputed by the tenants through the counter which they filed to the RCP. It was contended that Smt.Vijayalakshmi Ammal who was the second petitioner in the RCP had no intention to start a ladies corner. It was R. C. R. Nos.59 & 67 of 2008 -17- even contended that she was incompetent to conduct such a business. Though not specifically with reference to sub Section 3 of Section 11, it was contended that the landladies are in possession of 12 shop rooms, suggesting indirectly that it will be possible for the landladies to accomplish their need by utilising any one of those shop rooms. What is specifically contended by the tenants is that they are entitled for the protection of the second proviso to sub Section 3 of Section 11. The Rent Control Court on a detailed consideration of the evidence came to the conclusion that the need projected by the landladies was bona fide. It was also concluded by that court that the tenant is not entitled for the protection of the second proviso to sub Section 3 of Section 11. It was actually found that the tenants do not satisfy either of the two ingredients to the second proviso to sub Section 3 of Section 11. R. C. R. Nos.59 & 67 of 2008 -18- Nevertheless, order of eviction was declined under Section 11(3) for the reason that it had become evident that the landladies have under their vacant possession a lean to on the eastern side of the petition schedule building and that the landladies had not pleaded any special reasons as to why the above lean to could not be used for accomplishing the proposed need. Yet another reason is that the landladies demolished one of their shop rooms occupied by an Advocate by name Vasudevan and that the above said Vasudevan had been accommodated in a new shop room put up on the space immediately on the northern side of the room. Findings regarding demolition of the room occupied by Vasudevan and the construction of a new smaller room for accommodating Sri.Vasudevan were entered by the learned Rent Control Court on the basis of report submitted by an Advocate Commissioner who conducted a local R. C. R. Nos.59 & 67 of 2008 -19- inspection. It will be noticed immediately that the need projected by the landladies is bona fide and that the tenants are not entitled for the protection of the second proviso to sub Section 3 of Section 11 are findings entered by the Rent Control Court on a detailed consideration of the evidence on record and the above findings were never interfered with by the learned Appellate Authority. The Appellate Authority declined eviction more on the reason that the landladies have not assigned special reason as to why they could not accomplish the need by utilising other building/buildings in their possession. A perusal of the counter filed by the tenants will show that if at all there was a contention for them that the RCP is liable to fail by virtue of the first proviso to sub Section 3 of Section 11, the contention is raised with reference to 15 regular shop rooms allegedly belonging to the landladies. It is in evidence that all these R. C. R. Nos.59 & 67 of 2008 -20- rooms have at all relevant times been under the possession of tenants. This means that the first proviso to sub section 3 of Section 11 will not operate on the basis of those shop rooms. The finding of the Rent Control Court is firstly with reference to a vacant lean to, situated on the backside of the petition schedule building. Significantly, even the tenants did not feel like raising a contention on the basis of the above lean to which is per se unsuitable for conducting the proposed business in view of its size and more in view of its situation as a lean to on the back side of the petition schedule building without any road frontage or direct access for customers. It was unjust on the part of the Rent Control Court and the Appellate Authority to have found fault with the landladies for not having offered special reasons regarding the lean to of the petition schedule building for the purpose of the first proviso to sub Section 3 of Section R. C. R. Nos.59 & 67 of 2008 -21- 11. 10. Now we shall consider whether the demolition of the building previously occupied by Advocate Vasudevan and the construction of the new room for accommodating Sri.Vasudevan's office will bar the Rent Control Petition under the first proviso to sub Section 3 of Section 11. Evidently when the RCP was instituted Sri.Vasudevan was in occupation of the old office room which was subsequently demolished. Evidently the new room was constructed for accommodating Sri.Vasudevan and he has been accommodated also in that room. According to us, the explanation offered by the landladies as to why it became necessary to demolish the old office room of Vasudevan and to construct a new office room for him is quite convincing. Admittedly the old office room was demolished as soon as Vasudevan vacated and a wider pathway providing easy R. C. R. Nos.59 & 67 of 2008 -22- access to motor vehicles to the landladies' residential building is now provided. Admittedly, the new building was constructed for accommodating Sri.Vasudevan and it is clear to our mind and evident also that the demolition of the old building and the construction of the new building was done as a package on the basis of a bipartite agreement between Sri.Vasudevan an existing tenant of the landladies and the landladies. According to us, the first proviso to sub Section 3 of Section 11 cannot have any application in view of the old building formerly occupied by Vasudevan and the new one constructed for accommodating Sri.Vasudevan. 11. The inevitable result of the above discussion is that order of eviction will have to be passed against the tenants under sub Section 3 of Section 11. 12. In the result, both these revision petitions are allowed and order of eviction is passed against the R. C. R. Nos.59 & 67 of 2008 -23- respondent under sub Section 3 of Section 11. The order of delivery will be kept in abeyance till 30/06/11 subject to the following conditions:- 1) The respondents discharge arrears of rent, if any, within two months from today and continue to pay occupational charges at the existing rent rate promptly and regularly till actual surrender of the building is given. 2) The third respondent representing all the respondents files an affidavit within two months from today undertaking to surrender the building to the first revision petitioner Smt.Vijayalakshmi Ammal on or before 30/06/11 and undertaking also to discharge arrears of rent within two months and to pay occupational charges at the existing rent rates without fail till actual surrender is made. We make it clear that the respondents will get the benefit of time granted as above only if affidavit as ordered above is filed R. C. R. Nos.59 & 67 of 2008 -24- and the undertakings therein are honoured. Post on 21/12/10 as to be spoken to. ## 21/12/10 Spoke. The order dated 17/12/2010 itself be issued. PIUS C. KURIAKOSE JUDGE N. K. BALAKRISHNAN JUDGE kns/-