IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev No. 207 of 2006()
1. THOMAS JACOB, AGED 50 YEARS,
... Petitioner
Vs
1. VIJAYALEKSHMI AMMA,
... Respondent
2. VIJAYA MOHANAN,
For Petitioner :SRI.R.GOPAN
For Respondent :SRI.M.M.ABDUL AZIZ (SR.)
The Hon'ble MR. Justice K.A.ABDUL GAFOOR
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :22/02/2007
O R D E R
K.A.ABDUL GAFOOR &
ANTONY DOMINIC, JJ.
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R.C.R.NO.207 OF 2006 F
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Dated this the 22th day of February, 2007.
O R D E R
Abdul Gafoor, J.
This is a revision by the tenant. The landlords
sought eviction of the tenant urging grounds available
under Sections 11(2)(b), 11(3) and 11(8) of the
Kerala Buildings (Lease and Rent Control) Act [Act 2 of
1965] {hereinafter referred to as ‘the Act’}.
2. The landlords were conducting an
educational institution. They wanted the space
occupied by the tenant, A and B scheduled rooms for
the purpose of expansion of the institution. Therefore,
the Rent Controller, allowing the petition on the said
counts, ordered eviction under Section 11(7) as well.
The tenant surrendered one among the shop rooms
viz., building scheduled as ‘A’ and carried the matter in
appeal, concerning the building scheduled as ‘B’. The
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order of eviction on the grounds under Sections 11
(2)(b), 11(3) and 11(8) of the Act was confirmed. In
the above circumstances, the tenant has approached
this court with this revision.
3. The contention of the tenant that, as the
landlords have been conducting an educational
institution in the very same structure, they cannot
urge both the grounds under Sections 11(3) and 11
(8) to evict the tenant for the purpose of expansion
of the institution, is well justified in the light of the
decision of this court reported in Indian Saree
House v. Radhalakshmy {2006(3) K.L.T. 129}.
So the order of eviction under Section 11(3) of the
Act has to be set aside and we do so.
4. Admittedly, the landlords are conducting
an educational institution in the structure, where ‘B’
scheduled room is occupied by the revision
petitioner/tenant. Admittedly, the tenant himself has
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given vacant possession of ‘A’ scheduled building for
the same purpose. Merely because the landlords are
having other buildings in a different structure and
that building is sufficient for conducting classes, the
tenant cannot resist the eviction sought for under
Section 11(8) in the present structure. There is no
provision like the second proviso to Section 11(3) of
the Act in Section 11(8). Moreover, being an
educational institution, that has to be run in the
same structure. Therefore, the contention of the
revision petitioner, that the authorities below had
erred in finding the ground available under Section
11(8) in favour of the landlords, is not justified.
When the tenant himself admits that the landlords
are conducting an educational institution in the other
rooms in the same structure and when the landlords
have deposed that they have to expand the
institution, necessarily, they are entitled to get an
R.C.R.NO.207 OF 2006
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order of eviction under Section 11(8) of the Act. It
also, therefore, cannot be said to be not bona fide.
Therefore, the finding under Section 11(8) has to be
upheld.
5. At the same time, merely by reason of
showing the ground under Section 11(8), the
landlords are not entitled to get an order of eviction
of the tenant. The Rent Controller has, at the same
time, to examine the comparative hardship in terms
of the first proviso to Section 11(10) of the Act. A
reading of the orders of the authorities below reveal
that this comparative hardship had never been
enquired into by them. The contention of the
landlords is that the finding of the Rent Controller
that the revision petitioner/tenant was not depending
upon the income derived from the business
conducted by him in the plaint scheduled ‘B’ building
for the purpose of his livelihood reveals that he does
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not have any hardship. Such a finding is not
sufficient for the purpose of the first proviso to
Section 11(10) of the Act. In a similar matter arising
in S.R.Babu v. T.K.Vasudevan {[2001] 8 S.C.C.
110}, the Supreme Court has held as follows:
Inasmuch as the authorities below, having
proceeded on the footing that sub-section (30 of
Section 11 of the Act is attracted, have not recorded
a finding under the first proviso to sub-section (10)
of Section 11 of the Act, it is necessary that the case
should be sent back to the Rent Controller to
consider whether requirement of the said proviso is
satisfied and if so, to record a finding thereunder,
after hearing the parties.”
6. Following this, necessarily, in the absence of a
finding of the comparative hardship in terms of the first
proviso to Section 11(10), the matter has to be remitted
back to the Rent Controller to examine the comparative
hardship alone, confirming the finding on the ground under
Section 11(8) of the Act.
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7. Next, we will consider the eviction
ordered under Section 11(7) of the Act. Section 11
(7) reads as follows:
“Where the landlord of a building is a religious,
charitable, educational or other public institution,
it may, if the building is needed for the purposes
of the institution, apply to the Rent Control Court
for an order directing the tenant to put the
institution in possession of the building.”
8. A reading of this Section itself will reveal
that this ground is available to an educational
institution or a charitable institution. The contention
of the landlord is that it is an educational institution.
But the landlord is not an educational institution, but
only individuals, who are conducting an educational
institution and the building is not owned by the
educational institution, but by the individuals, who
are conducting the educational institution.
Consequently, the protection of Section 11(7) of the
Act will not be available to individuals, who are
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simultaneously conducting educational institution and
having buildings let out to tenants. Necessarily, the
order of eviction passed under Section 11(7) of the
Act shall have to be reversed.
Thus, allowing the revision petition as
above, the matter is remitted back to the Rent
Controller for the purpose of finding out the
comparative hardship of the parties in terms of the
first proviso to Section 11(10) of the Act alone. The
parties shall appear before the Rent Controller,
Kayamkulam on 12.3.2007 and the Rent Controller
shall dispose of the matter before 30.6.2007.
Sd/-
(K.A.ABDUL GAFOOR)
JUDGE
Sd/-
(ANTONY DOMINIC)
JUDGE
sk/
//true copy//
K.A.ABDUL GAFOOR &
ANTONY DOMINIC, JJ.
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R.C.R.NO.207 OF 2006 F
O R D E R
22nd February, 2007.
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