High Court Kerala High Court

V.M.Sheela vs Kamco Employees Union on 9 April, 2010

Kerala High Court
V.M.Sheela vs Kamco Employees Union on 9 April, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

RCRev..No. 201 of 2007()


1. V.M.SHEELA,W/O.K.K.BALAKRISHNAN,KULIRMA,
                      ...  Petitioner

                        Vs



1. KAMCO EMPLOYEES UNION, ATHANI, REGD.
                       ...       Respondent

                For Petitioner  :SRI.K.JAYAKUMAR

                For Respondent  :SRI.V.K.VEERAVUNNY

The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice K.SURENDRA MOHAN

 Dated :09/04/2010

 O R D E R
                                                  C.R.
                 PIUS C.KURIAKOSE &
             K.SURENDRA MOHAN, JJ.
           -------------------------------------------
                 RCR No.201 of 2007
           -------------------------------------------
        Dated this the 9th day of April, 2010

                          ORDER

Surendra Mohan,J.

This is a tenant’s revision filed challenging

concurrent orders of eviction passed by the Rent

Control Court, Aluva and the Rent Control Appellate

Authority, North Paravur. The respondent-landlord is

the KAMCO Employees Union, represented by its

General Secretary. The Rent Control Court ordered

eviction under Section 11(3) 11(7) and 11(8) of the

Kerala Buildings (Lease and Rent Control) Act, 1965.

On appeal, the Appellate Authority rejected the ground

under Section 11(3) and confined the order of eviction

to the grounds under Section 11(8) and 11(7) of the

Act.

2. The respondent-landlord filed RCP No.15 of

2004 of the Rent Control Court, Aluva seeking an order

RCR No.201/2007 2

of eviction against the tenant under Section 11(3), 11

(7) and 11(8) of the Act. According to the petitioner,

the tenanted premises having an area of 750 sq.ft.

was initially let out to the husband of the revision

petitioner on a monthly rent of Rs.2,300/- for the

purpose of conducting hotel business. However, the

husband of the revision petitioner could not conduct

the business in his name for the reason that he was an

employee of the ‘TELK’. Therefore, on his request a

renewed agreement was executed by the landlord in

favour of the revision petitioner. On the north of the

petition schedule premises, there is another room

from which the office of the respondent-landlord is

functioning at present. It is the case of the landlord

that the space now available is not sufficient for its

activities. According to the landlord, for conducting its

annual general body meeting, the space was

absolutely insufficient. Therefore, it was contended

RCR No.201/2007 3

that the space occupied by the revision petitioner was

also required for the purpose of organizing its

activities and for conducting its general body meeting.

3. The need put forward by the landlord was

resisted by the tenant. According to her, the petition

schedule premises was constructed by her utilizing her

own funds on the land owned by the Union after

seeking its permission. According to her, she had

spent an amount of Rs.4,15,000/- for the construction

of the petition schedule room. However, she had

been made to sign and hand over to the Union, blank

stamp papers at the time of commencement of the

tenancy. The allegation is that Union had fabricated a

rent deed on such signed blank stamp papers.

4. The tenant further contended that the office

space presently available was more than sufficient for

organizing the activities of the Union. The annual

general body meeting is convened only once a year.

RCR No.201/2007 4

On other days, the Union is letting out the available

space on daily rent. Therefore, the tenant contended

that the need alleged was only a ruse for eviction.

5. The Rent Control Court tried the petition on the

above pleadings. The landlord examined PWs.1 to 3

witnesses while the tenant examined herself and her

husband as RWs.1 and 2. On the side of the landlord,

Exts.A1 to A23 (series) documents were marked.

Ext.C1 Commission Report was marked as Court

Exhibit.

6. After an elaborate consideration of the

contentions of the parties and the evidence on record,

the court below granted an order of eviction on the

three grounds put forward in the Rent Control Petition.

The order of the Rent Control Court was challenged by

the tenant in RCA No.29 of 2005 before the Rent

Control Appellate Authority, North Paravur. The

Appellate Authority, on a reappraisal of the pleadings

RCR No.201/2007 5

and the evidence on record found that the order of

eviction under Section 11(3) was unjustified and

therefore set aside the same. However, the order of

eviction under Section 11(7) and 11(8) were sustained.

The aggrieved tenant is the revision petitioner.

7. We have heard Adv.P.B.Krishnan, the counsel

for the revision petitioner and Sri.V.K.Veeravunni, the

counsel for the respondent-landlord. We have been

taken through the pleadings and the evidence in the

case. We have anxiously considered the rival

contentions of the parties and the evidence in the

case.

8. The point that arises for consideration is :-

“Whether the composite order of
eviction granted under Section 11(7)
and 11(8) of the Act is sustainable?”

9. Though the tenant has a contention that the

petition schedule premises were actually constructed

by her spending an amount of Rs.4,15,000/-, there is

RCR No.201/2007 6

no reliable evidence available in support of the above

contention. The said contention has also not been

canvassed with any vigour before us by the counsel.

We do not find any grounds to upset the findings of

the authorities below in this regard.

10. According to the counsel for the revision

petitioner, the Commission Report Ext.C1 shows that

the present room occupied by the Union has an area

of 404 sq.ft. According to the counsel, the Union

Office has an area of 275 sq.ft. and the verandha

portion had an area of 128 sq.ft., and therefore, the

space was sufficient to accommodate at least 40

people. The Commissioner has reported that the

space was not sufficient to accommodate all the

members. It is pointed out that the Union has only 54

members and even if all the members were present to

attend a general body meeting, the others could be

easily accommodated on the covered veranda that

RCR No.201/2007 7

forms part of the office room. Relying on Ext.A22

Minutes Book of the Union, it is pointed out by the

counsel that the two general body meetings, prior to

the rent control proceedings were attended only by 29

and 32 members respectively. Therefore, it is pointed

out that the space available was more than sufficient

to satisfy the need of conducting general body

meetings of the Union.

11. It is clear from the above contentions that

the attempt of the tenant is to show to this Court that

the covered veranda that forms part of the building

could be utilized by the landlord for accommodating

the members of the Union while conducting the

general body meeting. It is trite that, it is not for the

tenant to dictate to the landlord how to satisfy his

need. When the landlord has a sufficiently spacious

room owned by it, there is nothing wrong in the

landlord wanting possession of the said room for its

RCR No.201/2007 8

need. The need cannot be rejected on the ground

that the landlord would be able to satisfy its need by

utilizing the veranda. Therefore, the said contention

of the revision petitioner cannot be accepted. The

courts below were right in finding that the need of the

landlord was genuine and bonafide. There is nothing

wrong in the landlord wanting possession of a more

spacious room for the purpose of conducting its Union

activities including its general body meeting.

12. It is the admitted case of the revision

petitioner that the respondent/landlord is a Union

registered under the Indian Trade Unions Act, 1926.

The respondent has produced a certified copy of its

bye laws, which is Ext.A7. The annual returns has

been produced and marked as Ext.A8(b). The

accounts maintained by the Union are Exts.A20 and

A21. The Minutes Book of the Union from 5.4.2002

has been marked as Ext.A22. The above documents

RCR No.201/2007 9

clearly prove that the landlord Union has been

functioning as a trade union.

13. The question whether a trade union is a

public institution under Section 11(7) of the Act has

been considered by a Division Bench of this Court in

Haridas v Merchantile employees Association

(1975 KLT 437). After going through the constitution

of the trade union, this Court found that, trade union

was a public institution under Section 11(7) of the Act.

In conclusion, this has Court observed as follows:

“It is clear, that judged by the objects for
which the Association stands and the
nature of its membership which consists
of various classes of industrial workers
and commercial employees who certainly
constitute a substantial section of the
public, the Association cannot be said to
be a private body and must be held to be
a public institution.”

14. Therefore, there cannot be any doubt that

the respondent union is a public institution for the

purpose of section 11(7) of the Act.

RCR No.201/2007 10

15. It has been contended by the counsel for the

revision petitioner that the Appellate Authority erred

in clubbing together the grounds under Section 11(7)

and 11(8) of the Act. In fact, in the present case,

eviction was sought on the combined grounds under

Section 11(3), 11(7) and 11(8). Eviction was also

ordered by the Rent Control Court initially on all the

three grounds. The Appellate Authority however set

aside the grounds under Section 11(3) of the Act and

confined the order of eviction to Sec.11(7) and 11(8)

of the Act.

16. It has been held by this Court in various

decisions that the grounds under Section 11(3) and 11

(8) are mutually exclusive and a combined order of

eviction cannot be passed under both the above

grounds. As rightly noted by the Appellate Authority,

one of the important differences between the two

grounds is the absence of the protection given to the

RCR No.201/2007 11

tenant by the proviso to Section 11(3). In fact there

are two provisos to Section 11(3), the first one

disentitling the landlord from obtaining an order of

eviction where he is in possession of another premises

of his own. In such cases, in the absence of specific

reasons, no eviction could be granted in favour of the

landlord. The second proviso clothes the tenant with

an immunity from eviction on his establishing that he

was dependent on the business carried on by him in

the premises for his livelihood and that there were no

other rooms available in the locality for shifting his

business. The rigor of the requirements of Section 11

(3) is considerably reduced in the case of the

protection under Section 11(8). The concept of

comparative hardship is introduced by Section 11(10)

of the Act. However, the question of bonafides is

certainly relevant not only in Section 11(3) and

Section 11(8) but also in Section 11(7). The content

RCR No.201/2007 12

of the requirement of bonafides in each of the

sections is different.

17. As far as the requirement of Section 11(7) is

concerned, what is important is to consider whether

the need put forward is genuine or not. In the

present case, it has been established by Ext.C1 and

the oral evidence of PWs.1 to 3 that the respondent is

actually in need of more spacious premises, which is

available in the occupation of the revision petitioner.

There is nothing on record to show that the need is

put forward as a ruse for evicting the revision

petitioner. Since the respondent is a public

institution, the ground under Section 11(7) is available

to it. Therefore, the authorities below were right in

finding that the respondent has made out a need

under section 11(7) of the Act. We do not find any

ground to interfere with the concurrent findings of the

authorities below.

RCR No.201/2007 13

18. The ground under Section 11(8) has also

been found by the authorities below. It has already

been found by us that the space available to the

respondent is not sufficient for holding the meetings

of the Union in a comfortable manner. The above fact

is evident from Ext.C1 report of the Commissioner

also. The relevant consideration in an action under

Section 11(8) should be of the comparative hardship

of the landlord and the tenant. The tenant is the wife

of an employee of the TELK, where her husband is

already employed. Therefore, the hardship that would

be caused to the revision petitioner/tenant would be

less in comparison to the hardship that would be

caused to the landlord.

19. In view of the above, the authorities below

were right in finding that the revision petitioner/tenant

was liable to be evicted under Section 11(8) of the act

also.

RCR No.201/2007 14

20. For the foregoing reasons, we do not find any

grounds to interfere with the findings of the Appellate

Authority. As a last submission, the counsel for the

revision petitioner prayed for the grant of one year’s

time to vacate the premises. We do not think that the

grant of such a long period of time to the tenant to

vacate the premises is justified. However, we feel

that a reasonable time can be granted.

21. In the result, the Rent Control Petition is

disposed of with the following directions:-

i) The order of eviction granted against the

tenant is confirmed.

ii) The tenant is granted time up to 30.4.2010 to

surrender vacant possession of the tenanted

premises to the respondent/landlord. The grant of

time as aforesaid is subject to the further condition

that the revision petitioner/tenant shall file an

affidavit before the Rent Control Court or the

Execution Court as the case may be, within a period

of two weeks from today, undertaking to vacate the

tenanted premises on or before 30.4.2010.

RCR No.201/2007 15

iii) The revision petitioner/tenant shall pay all

arrears of rent in respect of the premises remaining

unpaid till date and shall continue to pay the rent in

respect of the tenanted premises until vacant

possession thereof is surrendered to the respondent-

landlord.

iv) In the event of the tenant committing default

of any of the above conditions, the landlord shall be

at liberty to execute the order of eviction passed

against the tenant.

In the circumstances, there will be no order

as to costs.

PIUS C.KURIAKOSE,
JUDGE

K.SURENDRA MOHAN,
JUDGE
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