IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 261 of 2007()
1. K.P.KARUNAKARAN NAIR,
... Petitioner
Vs
1. R.SUDHAMANI AMMA,
... Respondent
2. K.P.SREEKUMAR, S/O.PADMANABHA PILLAI,
For Petitioner :SRIR.AZAD BABU
For Respondent :SRI.P.G.PARAMESWARA PANICKER (SR.)
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice K.SURENDRA MOHAN
Dated :01/11/2010
O R D E R
PIUS C. KURIAKOSE &
K. SURENDRA MOHAN, JJ.
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R.C.R NO:261 OF 2007
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Dated this the 1st November, 2010.
O R D E R
Surendra Mohan, J.
This is a tenant’s revision, filed challenging concurrent orders
of eviction passed by the Rent Control Court and confirmed by the
Rent Control Appellate Authority.
2. RCP 64/97 of the Rent Control Court, Alappuzha was filed
by the first respondent-landlady under the provisions of the Kerala
Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred
to as the ‘Act’ for short) seeking eviction of the tenant on the
grounds of arrears of rent, Section 11(2)(b), bonafide need for own
occupation, Section 11(3) and for additional accommodation Section
11(8). The petition was contested by the tenant. After trial the
Rent Control Court granted eviction only on the ground of arrears
of rent. Therefore, the landlady filed RCA 28/2005 before the Rent
Control Appellate Authority, Alappuzha. As per judgment dated
19/1/2007, the Appellate Authority allowed the appeal and found
that the tenant was liable to be evicted on the ground of bonafide
need for own occupation of the landlord also. The order of eviction
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under Section 11(2)(b) has become final. Therefore, the ground of
attack of the tenant in the above revision is confined to the order of
eviction granted under Section 11(3) of the Act.
3. The tenanted shop room is part of a line building of nine
shop rooms on one side with a set of same number of shop rooms
on the rear side also. The building is situate on the western side of
the public road in front of the S.D College, Alappuzha. The
building originally belonged to the father of the first respondent.
After the death of her father and mother, the first respondent
succeeded to the ownership of the same. Thereafter, the tenant
attorned to the first respondent and has been paying rent to her.
4. The tenanted premises is the third room from the south,
forming part of the above building, bearing Municipal door No:
1131. The shop room was taken on rent in the names of the
revision petitioner and the second respondent as per Ext.A1 rent
deed dated 11/2/1981 from the father of the first respondent. The
monthly rent of the building is Rs.60/-. The revision petitioner-
tenant is conducting a college book stall in the petition schedule
shop room. The first respondent-landlady is conducting a
stationery shop in the adjacent shop room. She is also conducting
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a ladies store in the southernmost room and a beauty parlour in
another room behind the ladies store.
5. According to the landlady, the room from which she is
conducting her beauty parlour has no road frontage or sufficient
space for conducting the same in a convenient and profitable
manner. The landlady contended that since she has no other
employment, she wants to shift the beauty parlour to the tenanted
shop room and, therefore she needed the same for her bonafide
own occupation. She also contended that her daughter who is
dependent on her was also interested in conducting the business.
It is the further contention of the landlady that the rent is in arrears
and that the tenant has another room bearing door No: XXXIII/1119
nearby in his occupation, which is sufficient to accommodate his
business. Therefore, she sought eviction of the tenant.
6. The petition was resisted by the tenant, contending that
there was absolutely no bonafides in the need that was put forth by
the landlady. According to the tenant a number of rooms in the
same building were lying vacant. Other rooms that got vacated
were either kept vacant or were rented out. According to the
tenant, the landlady had no intention to shift the beauty parlour.
Her case that the room had no road frontage was also disputed
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contending that the said room presently faces the newly formed,
NH By pass road. According to the tenant the eviction was sought
only out of personal enmity for the reason that there were a
number of proceedings before the Accommodation Controller
between himself and the landlady. The tenant also contended that
he was conducting a business selling books, that his business could
earn profits only because of its location in front of the S.D.College.
He therefore, contended that it was not possible for his business to
be shifted elsewhere. According to the tenant, the other shop room
occupied by him was about half a kilometer away and was used only
as a godown.
7. The evidence in the case consists of Exts.A1 to A12
documents and the oral evidence of the landlady as P.W.1 on one
side and Exts.B1 to B6 documents and the oral evidence of C.P.Ws 1
and 2 on the side of the tenant.
8. On a consideration of the evidence both oral and
documentary, the Rent Control Court came to the conclusion that
the landlady had not succeeded in making out the grounds under
Section 11(3) and 11(8). Therefore, eviction was granted only under
Section 11(2)(b) of the Act. The Appellate Authority while allowing
the appeal filed by the landlady has found that the landlady had
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established her bonafide need under Section 11(3) of the Act and,
therefore, granted an order of eviction under Section 11(3) of the
Act also. The said judgment of the Appellate Authority is under
challenge in this Rent Control Revision.
9. As per order in I.A.939/2009 an Advocate Commissioner
was deputed from this Court to make a local inspection of the
tenanted premises and to submit a report to this Court regarding
the present condition of the building and other details.
Accordingly, the Advocate Commissioner visited the premises on
11/4/2009 and has filed a report dated 25/5/2009, which is part of
the record. The said report is admitted in evidence and is marked
as a court exhibit, Ext.C1.
10. According to the description in the Commission report,
the building in which the petition schedule shop room is situate, is
in a dilapidated condition. It is the case of the tenant that the
room in which the landlady is conducting her beauty parlour has
frontage of the NH By pass which is situate at the back of the line
building. The Advocate Commissioner has reported that no such
road frontage is available. In fact, only an access is possible from
the line building through a Municipal road having a width of 3.90
mtrs connecting the By pass road. However, the Commissioner has
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reported that six rooms on the northern side of the petition
schedule premises form part of a newly constructed building which
faces the NH 47. The rooms in the said building are secured by
rolling shutters. Except for one room which was remaining closed,
the Advocate Commissioner has found that the rest of the rooms
were occupied by different tenants. The Advocate Commissioner
has reported that in the second room from the south, a banner of
the LDF candidate of Alappuzha constituency, Shri. K.S.Manoj is
displayed. It is clear from the commission report that the tenant
has another premises in his occupation which is located about 30
mtrs away from the tenanted shop room. The said room is part of
another line building with 10 rooms in the front row. It is also
reported by the Advocate Commissioner that the petition schedule
shop room and the second room occupied by the tenant are both
situate opposite to the S.D.College compound facing the N.H 47.
11. The landlady has filed objections to the commission
report contending hat the report suffers from many inaccuracies.
According to the landlady there is no proper access to the room in
which she is conducting her beauty parlour. The only access is to
an open space (courtyard) which is on the northern side of the said
shop room. She has refuted the observation of the Advocate
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Commissioner in his report that her husband had told him at the
time of inspection that four rooms in new building are lying vacant.
According to her, three rooms out of the four, have already been
sold off by her. Two rooms are in the occupation of tenants and
the remaining one room is occupied by her. She is conducting her
stationery shop business from the said room. Therefore, according
to the landlady, there are no suitable vacant shop rooms available
for the purpose of shifting her beauty parlour business.
12. The landlady has produced two additional documents
along with I.A.1262/2009. One of the documents is an order
issued by the Municipal Secretary, Alappuzha according sanction to
her for the reconstruction of her old building that had collapsed.
The same is order No: E3B-472/05-06 dated 27/3/2006 and is
marked in her affidavit as Annexure A. Annexure B is an order
dated 20/7/2007 passed by the Tahsildar and Accommodation
Controller, Alappuzha, on a petition filed by the tenant for a
direction to compel the landlady to conduct periodic maintenance
of the tenanted shop room. As per order dated 3/7/2009, the
above I.A has been allowed and the documents produced as
Annexures A and B have been marked as Exts.A13 and 14
respectively.
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13. We have heard Mr. Azad Babu who appears for the
revision petitioner and Senior Advocate Shri. P.G.Parameswara
Panicker who appears for the landlady, in detail. We have gone
through the records of the case and have given anxious
consideration to the issues raised and argued before us.
14. It is not in dispute that the landlady is conducting various
businesses in the building in which the tenanted shop room is
situate. She is already in occupation of one room from which she is
conducting a business in stationery items and another shop room
from which she is conducting a ladies store. Apart from the above,
the petitioner is also conducting a beauty parlour. The need of the
petitioner is for the purpose of shifting her beauty parlour to the
petition schedule shop room. She wants to expand her business
and to conduct the beauty parlour on a larger scale, which she is
not able to do from the premises presently occupied by her for the
reason that the same has no road frontage. There is no evidence or
material on record to indicate that the need of the landlady is not
bonafide. Though she had initially stated that her daughter was
also intending to join her in the business of conducting her beauty
parlour, it is pointed out by the counsel for the revision petitioner
that the daughter has since been married off and is living with her
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husband at Kottayam. That does not affect the bonafides of the
landlady’s need for the reason that, nothing prevents her from
conducting the beauty parlour by herself. The tenant also does not
have a case that she has stopped her beauty parlour after her
daughter’s marriage. As rightly taken note of by the Appellate
Authority, the landlady has obtained an SSI Registration for her
beauty parlour. She has spoken to her need, when examined in
Court and has also withstood the cross examination of the counsel
for the tenant. Therefore, we hold that the finding of the Appellate
Authority that the landlady has succeeded in proving her bonafide
need is well founded.
15. According to the counsel for the revision petitioner, the
landlady has demolished the entire building portion on the northern
side of the tenanted shop room and has reconstructed the same.
The new reconstructed building has six shop rooms which
according to the revision petitioner are in her possession.
Therefore, it is contended that the bonafide need of the landlady
has been extinquished. The Advocate Commissioner was deputed
by this Court to ascertain and report regarding the above factual
position. Accordingly Ext.C1 report has brought on record, the
present position of the building. Ext.C1 report shows that the
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building on the northern side was demolished by the landlady and
that she has put up a new building in its place. According to the
landlady, the entire building had become dilapidated, was on the
verge of collapse due to old age and had to be reconstructed.
Therefore, she had sought permission for such reconstruction.
However, while granting permission for reconstruction, the
Municipality insisted on the landlady to pull back the building from
the National Highway by a distance of 4 = mtrs. But she could not
undertake the construction because the rooms were occupied by
the tenants. While so, the northern portion of the building
comprising of six rooms collapsed and fell down. The landlady had
to complete the construction of the collapsed portion alone,
because she could not get possession of the tenanted premises. It
is contended by the landlady that the tenanted premises are also in
a dilapidated condition and that it is not safe for the customers to
be admitted since it may collapse at any time.
16. Regarding the rooms in the newly constructed portion of
the building, the case of the landlady is that three rooms have been
sold by her while two rooms are in the occupation of tenants. From
the remaining one room, the landlady is conducting her business in
stationery items, which was earlier being conducted in the old
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building. Therefore, according to the landlady, there was no room
available in the newly constructed building for shifting her beauty
parlour. According to the counsel for the landlady, the shop rooms
had to be sold for the purpose of meeting the cost of construction
of the new building.
17. Though it is admitted that the northern portion of the
line building had collapsed and had to be reconstructed, there is no
evidence or material available on record to show what the
dimensions of the old building were and who the tenants in
occupation thereof were. There is also no evidence available
regarding the dimensions of the newly constructed building.
According to the counsel for the landlady, the area of the building
had to be substantially reduced because of the insistence of the
Alappuzha Municipality on a pull back of 4 = mtrs from the
National Highway being maintained. Since the reconstructed
rooms were smaller in dimension, they were not suitable for
shifting the landlady’s beauty parlour. The contentions of the
counsel for the landlady are stoutly opposed by the counsel for the
revision petitioner. It is contended that the rooms in the
reconstructed building are sufficiently large enough to satisfy the
need of the landlady. It is contended that the burden to establish
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special reasons as to why the rooms in the newly constructed
building were not sufficient to satisfy her need was on the landlady
and therefore, having failed to establish any such special reasons,
the order of eviction was liable to be set aside.
18. We notice from the judgment of the Appellate Authority
that the above contention had been raised before the said Authority
also. At that time, it was contended that the landlady was in
possession of other vacant rooms to one of which she could shift
her beauty parlour. She has answered the above allegation in her
evidence by deposing that the tenanted shop room was the most
ideal for her to shift the beauty parlour. The same has been
accepted and relied upon by the Appellate Authority. Similarly,
though it was pointed out that the northern portion of the line
building had been demolished by the landlady, the Court below has
found that since the tenanted shop room was still intact, her need
was still subsisting. We notice that the above are all questions of
fact on which there is a total lack of evidence on record. The
Appellate Authority has decided the issues involved on the fact
situation obtaining at the time of filing of the Rent Control Petition.
The Rent Control Petition was tried and evidence was let in, to
prove the facts and circumstances that existed at that time. What
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the tenant wants at present is for us to take note of the subsequent
events and to set aside the findings of the authorities below.
19. We do not think that this is a fit case in which the entire
matter should be remanded for the purpose of permitting the
parties to let in further evidence to establish the disputed questions
of fact on the basis of subsequent events. We notice that this is a
Rent Control Petition of the year 1997. The landlady has been
trying to obtain possession of the premises for more than a decade.
The building is old, damaged and is likely to collapse at any
moment. The business of the tenant has only flourished and
admittedly, he is in occupation of another premises, close by. The
Advocate Commissioner has reported that the other shop room
occupied by him is only 30 mtrs away from the petition schedule
shop room in the present case. Therefore, surrender of vacant
possession of the tenanted premises would not cause any prejudice
to him. We are also reminded of the fact that the rent in respect of
the tenanted premises is in arrears and an order of eviction has
been granted by the Rent Control Court for the above reason,
which has become final. Therefore, there is no equity in
permitting the tenant who has defaulted payment of even the paltry
rent, to continue in occupation of the premises. We also take
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note of the fact that the interests of the tenant is sufficiently
protected by Section 11(12) of the Act which confers a right of re-
possession of the building on him if the landlady does not occupy
the premises within the time stipulated by the statute. In
appropriate cases, this Court has even permitted tenants to
reconstruct the tenanted premises to give effect to the statutory
mandate. We do not find any illegality, impropriety or irregularity
vitiating the findings of the authorities below.
20. For the above reasons, we confirm the findings of the
Rent Control Appellate Authority under Section 11(3) of the Act.
The Rent Control Revision fails and is liable to be dismissed. We do
so.
21. This Rent Control Revision is accordingly ordered as
follows:-
a) The order of eviction granted by the Appellate Authority
under Section 11(3) of the Act is confirmed.
b) The revision petitioner-tenant is given time up to
31/1/2011 to surrender vacant possession of the petition schedule
shop room to the landlady on condition that he files an affidavit
before the Rent Control Court or the Execution Court, as the case
may be, unconditionally undertaking to surrender vacant
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possession of the premises to the landlady on or before the said
date.
c) The tenant shall also pay the entire arrears of rent due to
the landlady and shall continue to pay the rent in respect of the
premises without any delay or default until he surrenders vacant
possession of the premises.
d) In the event of the tenant committing default of any of
the above conditions, the landlady shall be free to seek eviction of
the tenant in accordance with law, immediately. No costs.
PIUS C. KURIAKOSE
Judge
K. SURENDRA MOHAN
Judge
jj
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