Xavi v. Anitha Prathab; James Manuel v. Anitha Prathab (RCRev Nos. 409/2018 & 410/2018)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN MONDAY ,THE 07TH DAY OF JANUARY 2019 / 17TH POUSHA, 1940 RCRev..No. 409 of 2018 AGAINST THE JUDGMENT IN RCA 52/2016 of I RENT CONTROL COURT, ERNAKULAM DATED 25-07-2018 AGAINST THE ORDER IN RCP 11/2012 of RENT CONTROL COURT,MUVATTUPUZHA DATED 14-03-2016 ## REVISION PETITIONER/APPELLANTS/RESPONDENTS: 1 XAVI, S/O JOSEPH, KOCHUMUTTATHU HOUSE, ROOM NO.764/XIX, KANDOTHU BUILDING, KACHERITHAZHAM, MARADY, MUVATTUPUZHA. 2 JACOB JOHN, S/O CHACKO, VADAKKEMUTTAPPILIL HOUSE, ROOM NO.764/XIX, KANDOTHU BUILDING, KACHERITHAZHAM, MARADY, MUVATTUPUZHA. BY ADV. SRI.V.PREMCHAND ## RESPONDENT/RESPONDENT/PETITIONER: ANITHA PRATHAB, D/O K.J. SIMON, JOURNALIST, DOOR NO.207, PANAMPILLY NAGAR, KOCHI-682 036. BY ADVS. SUNIL SHANKAR(CAVEATOR) SRI.SUNIL SHANKAR, SC, INDIAN OVERSEAS BANK THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 07.01.2019, ALONG WITH RCRev..410/2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.C.R Nos.409 & 410 of 2018 -2- IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN MONDAY ,THE 07TH DAY OF JANUARY 2019 / 17TH POUSHA, 1940 ## RCRev..No. 410 of 2018 AGAINST THE ORDER/JUDGMENT IN RCA 51/2016 of RENT CONTROL APPELLATE AUTHORITY, ERNAKULAM DATED 25-07-2018 AGAINST THE ORDER IN RCP 9/2012 of RENT CONTROL COURT,MUVATTUPUZHA DATED 14-03-2016 ## REVISION PETITIONER/APPELLANT/RESPONDENT: JAMES MANUEL, S/O. MANI, KURUVITHADATHIL HOUSE, ROOM NO. 765/XIX, KANDOTHU BUILDING, KACHERITHAZHAM, MARADY, MUVATTUPUZHA. BY ADV. SRI.V.PREMCHAND ## RESPONDENT/RESPONDENT/PETITIONER: ANITHA PRATHAB D/O. K.J. SIMON, JOURNALIST, DOOR NO. 207, PANAMPILLY NAGAR, KOCHI - 682 036. BY ADVS. SUNIL SHANKAR(CAVEATOR) SRI.SUNIL SHANKAR, SC, INDIAN OVERSEAS BANK THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 07.01.2019, ALONG WITH RCRev..409/2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.C.R Nos.409 & 410 of 2018 -3- ## **ORDER** ## Annie John,J The petitioners are the tenants against whom orders of eviction have been passed under Sections 11(3) and 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act ('the Act' for short). The respondent is the landlord who has filed the Rent Control Petitions. The room was let out on monthly rental basis as per lease deed of the year 1992. 2. The averments in the Rent Control Petition is as follows: The respondent is the owner of the first and second floors of Kandoth building situated in Muvattupuzha town. The first floor of the building has 6 rooms which were let out to various tenants. The second floor is also in occupation of the tenants. The petition schedule shop room located in the first floor is having 150 sq. ft. The respondent wants to start a training school in journalism in the electronic and print media. He wants the first and second floor for that purpose. The petition schedule shop room was let out to the revision petitioner/tenant by registered lease deed No.442/1992 dated 31.01.1992. The rent of the room at the time of lease was Rs.550/and later it was enhanced to Rs.725/- per month. 3. The revision petitioners/tenants have filed objection R.C.R Nos.409 & 410 of 2018 -4- contending that the respondent has deliberately suppressed the material facts. The tenancy arrangement was entered into between the father of the landlord and he has paid Rs.13000/- as security and accordingly the petition schedule shop room was handed over to the revision petitioner/tenant. According to him, since the rental arrangement is a permanent one, it cannot be terminated by notice or filing a petition. The first floor of the building is having an area of less than 1200 sq. ft. There is no arrears of rent as alleged by the respondent. 4. According to the revision petitioners, the respondent/landlady has failed to prove the _bona fide_ need projected by her in the petition by adducing evidence. The learned counsel for the revision petitioners contends that the word 'occupation' used in Section 11(3) cannot be termed as one for livelihood if it is a commercial building or occupying for oneself if it is a residential building and there should be specific averments in the petition to substantiate the same. He has also contended that nowhere in the petition it is stated that she needs the petition schedule building for her occupation and for her livelihood. The respondent/landlord herself states that her husband is in Norway and during summer she will not be in India. Further, she has given statement to the effect that she would entrust a competent person to R.C.R Nos.409 & 410 of 2018 -5- run the school. He has further contended that the court below failed to take note of the inconsistency of averments in the pleadings in the petition and the proof affidavit. Further, the respondent/landlady failed to prove that she has sufficient means and has infrastructure to start a journalism training centre. In addition to that, the evidence would reveal that the building in question is too small to start a training school. On the grounds urged above, the revision petitioner/tenant prays for setting aside the judgments of the courts below. 5. The main argument advanced by the learned counsel for the revision petitioner is that the respondent/landlady has no intention to start the journalism school. Further, it was stated in the petition that she desires to start the journalism school at Moovattupuzha town. It is an undisputed fact that the respondent/landlady is a journalist and writer who worked with several media houses in India and abroad. Even according to the revision petitioner/tenant the income of the respondent from her profession as a journalist runs to lakhs of rupees and therefore, she is not in need of starting a journalism school at a small town like Muvattupuzha. On the side of respondent/landlady, she herself was examined as PW1. From her evidence, it is borne out that she had worked as the Bureau Chief of CNN and correspondent of Time Magazine in South Asia. She also holds B.A (Hons.) degree in R.C.R Nos.409 & 410 of 2018 -6- English and a Bachelor degree in journalism and Communication. She is also the recipient of the Prestigious George Polk award for TV Journalism. In fact, the revision petitioner has not challenged the evidence adduced by the respondent/landlady regarding her qualifications. The main argument on the side of the respondent/landlady is that the landlady requires the vacant possession of the petition schedule rooms, which was inherited from her father to start a Journalism school. As per the evidence of PW1, the Institution proposed to be started is a training school for journalists. But, during cross examination, it was deposed that the plan is to start a Coaching-cum-Training centre. Further, during cross examination, PW1 has stated that her intention is to start a coachingcum-training centre providing part-time courses with a duration of 16 classes in 8 weeks. Further, she has stated that no application from any university is required. She has further clarified that her intention is to start a coaching class for students interested in the field of journalism and on successful completion, they can include it in their profile. From her evidence, it is clear that what she intends is to start a centre which will provide basic lessons to aspire students in the high demand field of journalism and merely because the term 'school' is used in the petition, no-one can jump to the conclusion that it can only R.C.R Nos.409 & 410 of 2018 -7- be a centre providing diploma or degree courses. 6. The learned counsel for the revision petitioner has strenuously argued by stating that the word 'occupation' used in Section 11(3) of the Act is to be strictly read as the real intention of the landlord is to occupy herself as she is having no other independent income to have livelihood. In this connection, he has drawn our attention to Wharton's Law Lexicon in which the word 'occupation' describes thus: “Occupation also is employed as referring to that which occupies time and attention; a calling; or a trade; and it is only as employed in this sense that the word is discussed in the following paragraphs. The word 'occupation' is variously defined as meaning the principal business of one's life; the principal or usual business in which a man engages; that which principally takes up one's time, thought, and energies; that which occupies or engages the time and attention; that particular business, profession, trade, or calling which engages the time and efforts of an individual, the employment in which one engages, or the vocation of one's life, the state of being occupied or employed in any way, that activity in which a person, natural or artificial, is engaged with the element of a degree of permanency attached.” R.C.R Nos.409 & 410 of 2018 -8- On the basis of the above, the word 'occupation' is really meant for the actual occupation and enjoyment of the petition schedule building. But, in the instant case, the landlady is having only a desire to start the journalism school for the aspirant, who is interested to know about journalism. The learned counsel for the revision petitioner has further argued that if the respondent/landlady wants to start a journalism school, she has got umpteen other choices and selection of the petition schedule building, which is not fit for the need, should be viewed with suspicion. 7. According to respondent/landlady, the other building who is having an area of 1200 sq. ft is not sufficient to start the proposed institution and that the building which the respondent wants to get vacant possession is not sufficient enough to start the Institution which the respondent desires. It is well settled law that the landlady has a choice to decide in what manner the property can be utilized after eviction. Now the learned counsel for the revision petitioner attempted to prove that the desire and _bona fide_ requirement are treated as different and contended that a mere desire to start a business will not be sufficient enough to prove that she _bona fide_ required the petition schedule building for her own occupation. According to the revision petitioner, the landlady has sought for eviction of one of the rooms in R.C.R Nos.409 & 410 of 2018 -9- the first floor and it would reveal that the need urged by her is not genuine. Further, the revision petitioner has pointed out that one of the landlady has not filed any application to evict another person who occupies another building. According to the respondent/landlady, her purpose will not be defeated since she will start the work in the rooms involved in the batch of petitions and will proceed to evict the let out tenant later. 8. The main argument of the revision petitioner is that the word 'occupation' as used in Section 11(3) of the Act cannot be termed as one for livelihood and that the respondent/landlady has no requirement to get the petition schedule building for eking out her livelihood. It is true that the respondent/landlady is a well known journalist and she is getting sufficient income for her livelihood. But, what she intended is to establish an Institution ie., a journalism school for the purpose of the person, who is aspirant to know about the journalism. So,the need projected by the respondent/landlady cannot be termed as her only desire to start a training school. What she required is to get vacant possession of the petition schedule building for the purpose of starting a journalism school and the revision petitioner cannot direct the respondent/landlady to pick and choose the building as per the wish of the revision petitioner. So, in this case, R.C.R Nos.409 & 410 of 2018 -10- the interpretation of the word 'occupation' as mentioned in Section 11(3) of the Act is only for livelihood. Even otherwise, if the respondent/landlady desires to get vacant possession of her own residential occupation, the argument of the revision petitioner will not stand. It is also a settled principle of law that the tenant cannot question the suitability of the premises for the landlord's business purposes. Likewise, he cannot question the suitability of the premises for the landlord's residential purposes. In _**Ragavendra Kumar v. Firm Prem**_ [AIR 2000 SC 534], the Apex Court held that it is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter. Moreover, as has been held in a plethora of cases, neither the Court nor the tenant cannot dictate terms to the landlord regarding the suitability of the premises or even the extent of the business proposed to be carried out. Therefore, we find that the findings entered by the Rent Control Court as well as the appellate authority does not call for interference of this Court. Accordingly, we have no hesitation to confirm the order of the court below. Therefore, the revision petition is liable to be dismissed and we do so. 9. However, the learned counsel for the revision petitioners seeks time to vacate the tenanted premises. Having regard to the R.C.R Nos.409 & 410 of 2018 -11- facts and circumstances of the case, the revision petitioners are given six months' time to vacate the tenanted premises on the following conditions: 1. The revision petitioners shall pay the entire arrears of rent, if any, within a period of one month from the date of receipt of a copy of this order. 2. The revision petitioner shall file an affidavit expressing an undertaking that they are ready and willing to vacate the tenanted premises within a period of six months from today. 3. The affidavit shall be filed before the Execution Court within two weeks from the date of receipt of a copy of this order. In the case of failure, the time granted to vacate the premises will stand automatically cancelled and the respondent is entitled to enforce the order. sd/- **K. HARILAL, JUDGE.** sd/- **ANNIE JOHN, JUDGE.** _Rv_ R.C.R Nos.409 & 410 of 2018 -12-