IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 99 of 2009()
1. KOTTAYAM PUBLIC LIBRARY,
... Petitioner
Vs
1. JOHN MANI, AGED 56,
... Respondent
For Petitioner :SRI.BECHU KURIAN THOMAS
For Respondent :SRI.S.SREEKUMAR
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice K.SURENDRA MOHAN
Dated :09/12/2009
O R D E R
PIUS C. KURIAKOSE & K. SURENDRA MOHAN, JJ.
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RCR. No. 99 of 2009
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Dated this the 9th day of December, 2009
O R D E R
Pius C. Kuriakose, J.
The landlord, Kottayam Public Library is in revision,
being aggrieved by the judgment of the Rent Control
Appellate Authority dismissing the RCP filed by them on the
ground under Sub Section (7) of Section 11 of Act 2 of
1965. The parties will be referred to as landlord and tenant
respectively. The case of the landlord as set out in the RCP
was that the landlord is a charitable and educational society
registered under Act 12 of 1955 and that for implementing
the aims and objects of the society the subject building is
required for the purpose of starting a computer centre.
According to the landlord the petition schedule building
possessed by the respondent as tenant is very convenient
and suitable for starting the proposed computer centre. The
executive committee of the petitioner society has taken a
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decision to locate the computer centre in the building. In
anticipation of a claim by the respondent for a protection of
the second proviso to Sub Section (3) of Act 2 of 1965, the
landlord also stated that the respondent-tenant does not
depend on the income that he derives from the business
carried on from the petition schedule building for his
livelihood. The respondent objected to the RCP contending
that the petition is actuated by malafides. It was contended
that the landlord Library has absolutely no intention to start
a computer centre in the building. It was alleged that the
RCP has been instituted out of the personal spite of the
present president and secretary of the library towards the
tenant for not having yielded to their demand for
unconscionable enhancement of rent. It was also contended
that the signatory to the RCP is not competent to represent
the library. It was alleged that previously in 1984 the
landlord attempted to evict the tenant unsuccessfully to
evict the tenant by launching a petition on the ground of
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subletting. It was stated that the tenant is being treated
very badly by the landlord, though previously without any
demur the tenant had obliged to the request of the landlord
to shift from the present premises so as to pave way of the
reconstruction of the building. Refuting the bonafides of
the claim it is pointed out in the statement of objections that
the entire third floor of the building is currently being used
for the purpose of computer centre. The space available in
the third floor is more than sufficient. It is pointed out
that the instant petition is for extortion of unconscionable
rent. Starting of computer centre is not one of the aims
and objects of the library. The subject building is not
convenient or suitable for the proposed purpose. Recently
about 1600 sq. ft. of space in the ground floor fell vacant
but the landlord let out the same to private individuals.
This action demonstrates the absence of benefits for the
claim now raised by the landlord. It is also pointed out that
in a portion of the main building where the Kottayam Public
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Library is functioning, previously the local First Class
Magistrate’s Court was functioning and apart from the
building vacated by the First Class Magistrate’s Court the
library has got number of buildings in the Kottayam
Municipal Town in their possession. It is contended that
the main object of the library is to let out buildings and
derive rental income. The decision of the landlord to
choose the petition schedule room for the purpose stated in
the RCP is described in the statement of objection as
irrational and a ruse for evicting the tenant out of personal
grudge which the present secretary and library harbours
against the tenant.
2. The rent control court enquired into the RCP and at
trial before that Court the evidence consisted of documents
Exts. A1 to A5, B1 to B4, Commission report Ext.C1, Ext.X1
vacancy register produced by the Accommodation Controller
and oral testimonies of P.W.1 Vasudevan Nair (the
Secretary of the Library at the time of the institution of the
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RCP) and CPW1 the tenant and CPW2 the Accommodation
Controller. The Rent Control Court rightly noticed that the
only point which arises for consideration is whether eviction
was grantable under Sub Section (7) of Section 11 of Act 2
of 1965.
3. On appreciating the evidence which came on record
that court came to the conclusion that no reasons have been
brought out by the tenant for holding that the need
projected by the landlord is not a genuine and bonafide one.
It was accordingly held that the need urged by the landlord
is a bonafide one and accordingly passed an order of
eviction under Sub Section (7) of Section 11. The tenant
carried the matter in appeal to the Rent Control Appellate
Authority. The Appellate Authority considered Ext.A2
byelaws pertaining to the landlord Library and concluded
that the purpose projected in the RCP squarely falls within
the aims and objects of the Library. However, on making a
re-appraisal of the evidence that Authority held that the
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need is not a bonafide one. In coming to such a conclusion
the Appellate Authority has highlighted that there is no
consistency with respect to the purpose stated by the
landlord and also that the landlord has other space available
with them for fulfilling the purpose which is sought to be
achieved after getting eviction of the petition schedule
building. In this context the Appellate Authority points out
that in Ext. B1 notice which was sent by the landlord even
prior to Ext. A4 lawyer notice as a prelude for the Rent
Control Petition what was stated was that
sse{_dn AwK’D!v ({]tXyIn(v Ip+nID, h\nXID,
hnIemwK@ XpS’nbh@!v) hmbn!psXn\pw hf@sp
hcps hnhckmt&XnIhnZybpsS `mKambn Iw]yq+@
kwhn[m\w G@s8Sp/psXn\pw adpw sse{_dnhI
Xmgs/ \nebnepE ISID Hgn8ns(Sp/v hcnIbmWv.
{]kvXpX {]h@/\’D!v IqSpXp Xew
thonhcpsXn\mp Xm&fpsS kzodv LmD \S/psIS
IqSn Hgn8ns(Sp!psXn\v sse{_dn amt\PnwKv I=dn
Xocpam\n!pIbpombn.
According to the Appellate Authority during cross
examination of PW1 it was brought out that he was no
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longer the Secretary of the landlord/library and hence, he
was no more competent to swear to the alleged need of the
library or regarding the bona fides of the need. The
Appellate Authority also noticed that an area extending to
about 1600 or 1800 sq. ft. previously occupied by a tenant,
textile fair is presently being occupied by Plaza Jewellery
with the consent of the landlord. According to the Appellate
Authority, the explanation of PW1 as to why the premises
presently occupied by Plaza Jewellery could not be utilised
for starting computer centre is not convincing. The Appellate
Authority also notices that in the library’s building on Shastri
Road previously a Magistrate’s Court was functioning and no
explanation is forthcoming as to why the proposed computer
centre cannot be started in the building at Shastri Road
where Magistrate’s Court was previously functioning. The
Appellate Authority also noticed that the Rent Control
Petition does not clarify as to whether the proposed
computer centre is part of library intended to fill data
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regarding goods for easy operation of the library or whether
it is a computer centre intended to give training to the
people. The evidence of PW1 it is to the effect that it is
intended to give training, is not accepted by the Appellate
Authority on the reason that the same is not founded on
pleadings. The Appellate Authority would highlight a
passage in PW1’s evidence and conclude that the real
purpose behind seeking eviction was to install a capsule lift
for entering the fourth floor. This need runs in conflict with
the need projected and hence, the Appellate Authority
concluded that element of bona fides is conspicuously
absent in the landlord’s claim. On the basis of that
conclusion the Appellate Authority set aside the Rent
Control Court’s order and dismissed the RCP.
4. In this revision under section 20 various grounds have
been raised assailing the judgment of the Appellate
Authority. Very extensive arguments were addressed before
us by Sri.Bechu Kurian Thomas, the learned counsel for the
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revision petitioner on the basis of grounds raised in the
memorandum. All the submissions of Sri.Bechu were
resisted by Sri.S.Sreekumar, the learned counsel for the
respondent/tenant. Sri.Bechu Kurian Thomas submitted that
the Appellate Authority failed to understand the scope of sub
section 7 of section 11 which was specially enacted for the
benefit of the institutions like the landlord/library which
served the public good. According to him, once it is
established that a tenanted building is required for the
purposes of public institutions like petitioner library order of
eviction can be passed. The demand for enhanced rent at
the earlier point of time has been highlighted by the
Appellate Authority as a circumstance to conclude that the
need is not bona fide. The view of the Appellate Authority is
contrary to the decision of this Court in 2008(1) KLT 789.
The judgment of the Appellate Authority is the result of an
erroneous appreciation of evidence on recording the case.
The same is vitiated by illegality, irregularity or impropriety.
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The evidence of PW1 ought to have been appreciated as a
whole. When it is so done, it will be seen that installation of
capsule lift was only incidental to the purpose gained by the
landlord library. The capsule lift will not be inside the
petition schedule building. It will be outside the premises –
Mr.Bechu argued by highlighting on the nature and position
of the petition schedule premises in relation to the
remainder portions of the larger building of which the
petition schedule building is a part. Mr.Bechu fortified his
submissions by citing various decisions including the
judgment of this Court in Sree Narayana Dharmasabha v.
Sathiapalan (2004(2) KLT 373) and another recent
judgment of this Court in Social Service Guild of Assissi
Sisters v. Ouseph Chacko (2009(2) KLT 199) to both of
which one among us [PCK(J)] was a party. All the
submissions of Mr.Bechu Kurian Thomas were strongly
opposed by Sri.S.Sreekumar. He submitted that under the
statutory scheme the final court on facts is the Rent Control
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Appellate Authority. When that Authority has entered finding
on fact based on appreciation of evidence it is not for this
Court to upset those findings on re-appreciation of the
evidence. The finding of the fact finding court that the need
is not bona fide does not suffer from any infirmity as
envisaged by section 20 of Act 2 of 1965. According to Mr.
Sreekumar, sub-section (7) of Section 11 is also qualified by
sub-section (10) of Section 11 and the application has to be
rejected once it is found that the same is without bona fides.
Reminding us of the contours of the revisional jurisdiction
under Section 20 Mr. Sreekumar argued that in the present
jurisdiction, this court is not expected to reappraise the
evidence for the purpose of arriving at factual conclusions
different from those arrived at by the final fact finding
authority. According to Mr.Sreekumar, PW1, the former
secretary of the library has an axe to grind against the
tenant. This was why he insisted on himself giving oral
evidence in support of the rent control petition despite
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having demitted office as secretary. Mr.Sreekumar
submitted that a careful scrutiny of his evidence will show
that the real purpose behind evicting the tenant is to
construct a capsule lift so as to access the 4th floor of the
larger building. This purpose is inconsistent with the
purpose projected in the RCP and eviction for accomplishing
the above purpose cannot be permitted since the same will
result in prejudice to the tenant who was never called upon
to defend such a claim.
5. By way of reply Sri.Bechu Kurian Thomas would
submit that the finding of the learned Appellate Authority
that there is inconsistency between the purpose pleaded in
the RCP and the purpose spoken to by PW1 is the result of
an erroneous appreciation of the oral evidence. He drew
our attention to Annexure A1 and A2 produced by the
appellant along with IA. No. 3259 of 2009 which are two
photographs showing the picture of the larger building of
which the petition schedule premises are a part and
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particularly the petition schedule premises. He also placed
before us a rough sketch of the petition schedule premises,
the larger building of which the same is a part and the
relative positions of the roads which the building abut. He
submitted that the area reserved for the capsule lift does
not occupy any interior space of the petition schedule room
and is not going to encroach upon any part of the room
which is sought to be evicted. The proposed lift will be
outside the petition schedule building though through the
side of the petition schedule building which is situated in the
ground floor of the larger building. The learned counsel
submitted that the petition schedule premises has three
small shutters but the board displaying the name of the
business carried on by the tenant has been installed
encroaching on to the outer area on the left side. It is in
that outer area where along the entire height of the larger
building there is a very convenient niche for accommodating
capsule lift, that the capsule lift is proposed to be installed.
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6. We have very anxiously considered the rival
submissions addressed at the Bar. Since we felt that
annexures A1 and A2, the genuineness of which are not in
dispute, will be of help to us in resolving the controversy as
to whether the proposed capsule lift is going to be installed
by utilising a portion of the petition schedule building we
allowed IA. No. 3259/09. In fact, IA. No. 3259/09 was filed
by the revision petitioner in response to an oral direction
issued by us for production of photographs so as to enable
us to appreciate the issue in an objective manner. We are
convinced on a perusal of the photographs and also on
perusal of the rough sketch which was placed before us
during the course of arguments (the sketch tallies with
annexures A1 and A2) that the proposal for installing the
capsule lift if at all is to install the same outside the petition
schedule building and at the area of the corner of the larger
building which appears to be a convenient niche for
accommodating such a lift.
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7. The purpose projected in Ext.B1 notice, Ext.A4
notice, the rent control petition and also in the affidavit
sworn to by PW1 in lieu of his chief examination is the
purpose of starting a computer centre. It is in cross-
examination that PW1 mentions about the proposal to install
capsule lift. In fact that part of PW1’s cross examination is
extracted by the learned Appellate Authority towards the
end of paragraph 10 of its judgment. Translated to English
the above portion of the cross-examination of PW1 is as
follows:
“What we intend by saying computer centre is the
conduct of a training centre for those who come out
successful in library science etc. There is intention to
construct a capsule lift also for accessing the 4th floor.
The corner of the petition schedule building is
suggested for constructing the capsule lift.”
Once the above evidence is appreciated in the light of
annexures A1 and A2 it will be seen that the corner
referred to by PW1 in his cross-examination is not the
corner inside the petition schedule building, but is the
common corner of the entire larger building which by all
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appearances is a convenient niche for accommodating a
capsule lift. If annexures A1 and A2 were before the Rent
Control Appellate Authority there would not have been any
room for confusion as to where the lift is proposed to be
installed. Even otherwise, we are of the view that it was not
proper on the part of the Appellate Authority to have
appreciated the oral evidence of PW1 in the manner done.
Oral evidence of PW1 and for that matter any witness is to
be appreciated as a whole. When that is done it will not be
difficult to understand that PW1’s version was only
regarding accomplishment of the landlord’s idea of installing
a capsule lift also for which removal of the fairly large name
board presently exhibited by the tenant on the schedule
premises in a manner encroaching into the outside corner is
necessary. We are therefore of the view that the finding of
the learned Appellate Authority that there is inconsistency
between the need projected and the need spoken to is
highly improper.
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8. It was appreciating the evidence adduced by the
parties that the Rent Control Court, the trial court which had
the advantage of seeing the witnesses and recording their
testimonies, concluded that the need projected in the RCP
stood established by the evidence available on record. The
main reason on which the Appellate Authority interfered
with the above finding is the reason of inconsistency
between the need projected and the need spoken to in
evidence. We have already found that the above reason is
not a correct one. We are of the view that the other
reasons which weighed with the learned Appellate Authority
for holding that the need is not bona fide are also not
satisfactory. According to the Appellate Authority, PW-1
was no longer the secretary of the landlord library and was
no more competent to swear to the alleged need of the
library. The above view of the Appellate Authority is too
technical to receive acceptance. It was during the PW1’s
regime as secretary that the decision was taken by the
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library to evict the tenant for accomplishing the need
projected in the RCP. The tenor of the various questions
asked to PW1 will show that the tenant did not have any
serious challenge regarding PW1’s acquaintance with the
affairs and management of the library as a very active
member of the library. In other words, PW1’s competence
as a witness for the library was not seriously challenged.
The other two reasons mentioned by the learned Appellate
Authority is that an extensive premises (1600 to 1800 sq.
ft.) obviously occupied by a tenant textile fair is presently
being occupied by Plaza Jewellery with the consent of the
landlord and that the library does not come forward with an
explanation as to why another premises on Sastri Road
where a Magistrate Court was previously functioning cannot
be utilised for the proposed purpose. As for the premises
presently occupied by Plaza Jewellery in our opinion, the
explanation by the landlord that the landlord never came to
have occupation of those premises and that the former
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tenant textile fair themselves inducted Plaza Jewellery and
that the landlord became obliged to attorn with Plaza
Jewellery is a plausible one. Moreover, we find considerable
merit in the submission of the learned counsel for the
revision petitioner that both Plaza Jewellery building as well
as the premises on Sastri Road where the Magistrate Court
was previously functioning are very extensive premises not
necessary for the conduct of the proposed computer centre
which the library presently intends to start in a relatively
smaller premises. We are of the view that the law allows
certain amount of latitude to the landlord in the matter of
choice of premises for accomplishing its needs. It is not
for the tenant to dictate as to where among the several
places owned by the landlord, the landlord shall start the
proposed computer centre.
9. It appears to us that the learned Appellate Authority
missed the distinction between the statutory scheme for
eviction under subsection (3) of Section 11 and under
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subsection (7) of Section 11. In the instant case, the status
of the landlord library, one of the largest and ancient most
in the State, an institution registered under Act 12 of 1995
as a public institution envisaged by subsection (7) of Section
11 is not in dispute. Eviction ground specifically invoked in
the RCP is one under subsection (7) of Section 11. A
Division Bench of this Court in Social Service Guild of
Assissi Sisters v. Ouseph Chacko, 2009(2) KLT 199 to which
one among us (PCK, J) was party, had occasion to deal with
the relative standards for determining the bonafides for
claims under Section 11(7) and (3) and 11(8). The Bench
held at paragraph 10 of the order as follows:
“It is now trite by judgments of Division Bench of this
court in Pakran v. Kunhiraman Nambiar (2004 (1) KLT
824) and in K.T.Thomas v. P.Sreedhara Varma (2007
(4) KLT SN 58 (C.No.64) = 2008(1)KLJ 125) that the
standards to decide the bona fides of a claim under S.
11(3) and that of a requirement of additional
accommodation coming under S. 11(8) are different,
the former being more rigorous than the later.
According to us, the same principle can be invoked to
petitions under S. 11(7) and it can be safely held that
the standards for deciding the bona fides of a claims
under S. 11(7) are not so rigorous as the standards for
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deciding the bona fides of a claim under S. 11(3). In
fact we are of the considered view that the standards
for deciding the bona fides of a claim under sub-s. (7)
of S. 11 are even more liberal than the standards for
deciding the bona fides of claims under sub-s. (8) of S.
11. This is because unlike claims under sub-ss. (3) and
(8) of S. 11, where a private need of the landlord is
being recognised by the Court, in a claim under sub-s.
(7) of S. 11, the need which is given recognition and
accepted as a ground for evicting the tenant, will have
certain elements of interest of the public or a section of
the public since the accomplishment of the need will be
beneficial not only to the landlord but also to the entire
public who are beneficiaries of the activities of the
institution.”
We will immediately note in this context that the submission
of Mr.Bechu Kurian Thomas that the landlord library the
Kottayam Public Library has been rendering very useful
service to the public inhibiting the Kottayam Town and its
outskirts for several decades now and that the credibility
and reputation of the institution has never been questioned
by anybody concerned including the statutory authorities
like State Library Council was not disputed at the Bar.
10. We have no doubt that when the standards
necessary for a claim under sub-section (7) of Section 11
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are applied it will have to be found that the learned
Appellate Authority’s interference with the decision of the
Rent Control Court was unwarranted. As for the protection
under 2nd proviso to Section 11(3), the finding that the
tenant is not entitled to such protection has entered
concurrently and since such finding is founded on evidence
there is no warrant for interference.
11. The result of the above discussion is that RCR will
stand allowed. The judgment of the Rent Control Appellate
Authority is set aside. Eviction order is passed against the
respondent under sub-section (7) of Section 11. The
respondent is given time till 30-9-2010 subject to the
following conditions:
The tenant shall file an affidavit before the Execution
Court or the Rent Control Court as the case may be, within
one month from today undertaking to give peaceful
surrender of the building to the revision petitioner library on
or before 30-9-2010 and undertaking further to discharge
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arrears of rent if any within one month and to pay
occupational charges at the current rent rate till such time
as surrender of the building is given.
In view of the apprehension voiced by the learned
counsel for the respondent tenant that the real intention of
the library is to let out the building to some other tenant on
higher rent, we record the undertaking given on behalf of
the landlord library in this court by their counsel Sri.Bechu
Kurian Thomas that after eviction, the premises will be
utilised only for the purpose stated in the RCP we also
injunct the landlord from letting out the building for a period
of three years from today. RCR is allowed as above without
any order as to cost.
PIUS C.KURIAKOSE, JUDGE
K. SURENDRA MOHAN, JUDGE
ksv/-