IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 342 of 2006()
1. THAVAKKARA KOOLATH VALAPPIL SREEDHARAN,
... Petitioner
Vs
1. CHALAKKADAN KODICHI NALINI,
... Respondent
2. RAGHAVAN, S/O.MADHAVI,
3. PURUSHOTHAMAN, S/O.MADHAVI,
4. SREEDHARAN, S/O.MADHAVI,
For Petitioner :SRI.M.K.SUMOD
For Respondent :SRI.K.V.PAVITHRAN
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice K.SURENDRA MOHAN
Dated :24/11/2009
O R D E R
PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ.
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RCP. No. 342 of 2006
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Dated this the 24th day of November, 2009
O R D E R
Pius C. Kuriakose, J.
A tenant who was evicted from the subject building in
execution of an order of eviction passed by the authorities
under the Rent Control Act and confirmed by this Court and
the Supreme Court on the ground of own occupation under
sub-section (3) of Section 11 is in revision. He filed fresh
rent control petition invoking sub-section (12) of Section 11
alleging that the landlord had not occupied the building for
the need projected in the eviction petition. The need
alleged in the eviction petition was that possession of the
building is needed bona fide, so that the second respondent
in the present revision who was the second petitioner in the
eviction petition can occupy the building for the conduct of
a tutorial college. The revision petitioner alleges that after
getting vacant possession, the second respondent never
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occupied the building at all. On the other hand, the
building was let out to certain gypsies. According to the
revision petitioner the landlord never had any genuine
intention of conducting tutorial college in the subject
building. The non-occupation of the subject building after
getting possession was without any reasonable cause.
Hence the petition under sub-section (12) of Section 11
seeking re-delivery of the petition schedule building to the
revision petitioner was filed by the evicted tenant.
2. The petition was resisted by the respondents. They
contended that as soon as the building was got vacated the
respondents started the tutorial college. But the condition
of the building was highly dilapidated due to negligent user
by the revision petitioner. In fact, at the time when delivery
was taken, only a small portion of the building was
habitable. Therefore parents of students were not prepared
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to send their children for the classes conducted in the
building. Second respondent therefore became compelled
to stop the tutorial college. The condition of the building
was such that reconstruction was found absolutely
necessary. Therefore the respondents started demolishing
the building for the purpose of starting reconstruction.
Except two rooms, all other portions of the building were
demolished. At that juncture, the revision petitioner filed a
suit for injunction and got an interim order of injunction
restraining the demolition and reconstruction. Thus it was
contended that the non-occupation of the building after
obtaining eviction was due to reasonable and genuine
causes. The existing structure is of temporary nature and
hence the revision petitioner is not entitled to get order of
re-possession.
3. The petition was enquired into by the Rent Control
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Court. Evidence consisted of the testimonies of PW1 and
RW1 and Ext. A1. A commission was taken out and the
commissioner’s report was marked as Ext.C1 and the plan
submitted by him was marked as Ext.C2. The Rent Control
Court on evaluating the evidence found that the respondent
landlords failed to occupy the building within one month of
the date of eviction and that said non-occupation was
without reasonable cause. The Rent Control Court allowed
the petition. The landlords preferred appeal to the Appellate
Authority. The Appellate Authority under the judgment
which is impugned in this revision allowed the appeal and
dismissed the petition under sub-section (12) of Section 11.
4. We heard Sri.Kauser Edappagath, learned counsel
for the revision petitioner and those of Advocate
Sri.V.Ramkumar Nambiar for R1 to R3 and
Sri.K.V.Pavithran, Advocate for R4 and R5. Sri.Kauser
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argued that it was without adverting to material pieces of
evidence and by appreciating the evidence in an indifferent
manner that the Appellate Authority interfered with the
decision taken by the Rent Control Court. Learned counsel
submitted that the landlord failed to occupy the petition
schedule building within one month without any reasonable
cause. Counsel pointed out that it was stated by RW1
landlady for whose need of conducting tutorial classes the
building was got evicted that there are documents with her
to prove that she had conducted tutorial classes from 10-7-
2002. But no such documents were produced. Therefore
what the Appellate Authority should have done was to draw
adverse inference against the landlady for the non-
production of those documents. Learned counsel referred to
Section 507 of the Kerala Municipalities Act and submitted
that in terms of that Section, tutorial college can be
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established in a municipal area only after obtaining prior
registration from the municipality. Admittedly, no such
registration was obtained from the Kannur Municipality.
This according to the learned counsel is a circumstance
which disproves the case of the landlady that tutorial
college was started in the petition schedule building on 10-
7-2002. Counsel submitted that there was no evidence to
prove that the building was in such a dilapidated condition
that the respondent became compelled to stop the tutorial
college in the midway. Learned counsel submitted that the
building in question was situated in a very important locality
of Kannur Municipal Town and the case of the landlady that
gypsies came to occupy the same without the knowledge of
the landlords is highly improbable. It is in evidence that the
building in question is not far away from the place of
residence of the landlords and that unauthorised occupation
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by anybody in the building will be noticed by the landlords
or the members of their family who pass by the building
every day. Mr.Kauser submitted that the case of the
landlady that the building was demolished for the purpose of
paving way for reconstructing the same was also false. If as
a matter of fact , there is a genuine proposal to reconstruct
the building the respondents could have obtained an
approved plan and a building permit. No such plan or
building permit has been obtained and this again is a
circumstance which disproves the landlady’s case. All the
courts in the country from the Rent Control Court to the
Honourable Supreme Court have been taken for a ride by
the respondents and hence the learned counsel requested
that subsection (12) of Section 11 may be read in a
meaningful manner and implemented effectively. Mr.Kauser
submitted that the Appellate Authority failed to notice the
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difference between the words possession and occupation.
The learned counsel referred to the various statutory
provisions such as subsection (12) of Section 11,
subsections (3) and (8) of Section 11, clause (iv) of
subsection (4) of Section 11 and subsection (5) of Section
11. In order to expatiate his argument that possession and
occupation are different, the learned counsel relied on the
judgment of a Division Bench of this Court in Simon v.
Rappai, 2008(3) KLT 121. For the same proposition the
learned counsel relied on the bench decision of this Court in
Kurian Thomas v. Sreedhara Menon, 2004(3) KLT 326. The
learned counsel relied also on judgment of another Division
Bench of this Court in Rajagopalan v. Gopalan, 2004(1) KLT
Short Note 70 to which one among us (Pius C.Kuriakose(J)
was a member. Sri.K.V.Pavithran, appearing for the
contesting landlords would resist the submissions of
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Mr.Kauser on the various reasons stated in the judgment of
the Appellate Authority. He drew our attention to Ext.C1
report and C2 plan as well as to the oral evidence given by
PW1, the tenant.
5. We have considered the rival submissions addressed
at the Bar. Since the findings of the authorities below are
not concurrent, we have made a reappraisal of the evidence.
6. A reading of subsection (12) of Section 11 of Act 2 of
1965 will show that a tenant who was evicted from the
building on the ground under subsection (3) of Section 11
will be entitled for repossession (i) if the landlord fails to
occupy the building within 1 month without reasonable
cause, or (ii) after occupying it within 1 month, vacates the
building without reasonable cause within 6 months. In the
instant case, the allegation of the tenant is that the landlady
failed to occupy the building not even for a single day within
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one month of getting eviction. On the contrary, they let out
the building to gypsies. The petition for repossession was
filed on 21-11-2002. The commissioner conducted
inspection on the very next day after giving notice to the
petitioner as well as to the landlady. The commissioner
found the building to be in a dilapidated condition and to be
under the occupation of gypsies. The gypsies informed the
commissioner on enquiry that they were in occupation of the
big hall of the petition schedule building as well as the land
surrounding the building for last two weeks and that they
will be leaving the place within two weeks. It was found
that the building consisted of a big hall and two small
rooms. The commissioner found the entire roofing of the
big hall in a damaged condition. It was also found that the
roofing of the small two rooms were also damaged, but the
same was seen covered by a thick tarpaulin sheet. The
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door frames and window frames were also found to be in
damaged condition. The commissioner found some
benches and desks in the two small rooms. But they were
not seen arranged as in class rooms. No black board was
noticed by the commissioner anywhere in the building. The
two small rooms were full of cob webs and dust. It was
clear that at the time of inspection by the commissioner no
classes were being conducted in the petition schedule
building. The landlady also would state that by that time
she had stopped the tutorial college. The tenant’s case
regarding the presence of the gypsies was that the premises
were let out to the gypsies by the landlady’s husband; but
the landlady would state that gypsies were in unauthorised
occupation and that at the time when she was examined
they had already left the place. The evidence of the tenant
is that he had seen the gypsies talking to RW1’s husband
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and that it is with the concurrence of RW’s husband that
gypsies occupied the building for more than two months.
This was the basis on which the tenant argued before the
Rent Control Court that gypsies’ occupation was on the basis
of lease of the building by the landlords or by RW1’s
husband. The Rent Control Court however, did not become
inclined to accept the tenant’s case that the premises were
let out to the gypsies. According to that court, it is a matter
of common knowledge that wandering gypsies make use of
uninhabited and unoccupied premises for their temporary
stay. Presence of the gypsies reported to by the
commissioner was not attached much importance by that
court. However, on appreciating the evidence adduced by
the parties the Rent Control Court found that the landlady
had not occupied the building within one month of the date
of eviction. The court noticed that the definite case of the
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landlady in this context was that though the building was
not in a good condition she had started tutorial classes from
the two small rooms in the petition schedule building within
one month. It was noticed by that court that in the counter
filed by her she does not mention the date on which classes
were started. But at the stage of evidence, she would say
that she started classes on 10-7-2002. According to her,
since the academic year had already started she started
classes even without waiting for carrying out repairs to the
building. She stated that she had 22 students who had
failed in the SSLC examination. In cross examination she
stated that she was keeping an attendance register.
According to her, since the register got damaged she is not
in a position to produce it. But she also stated that there
were other documents to prove that she did start tutorial
college on 10-7-2002. The Rent Control Court noticed that
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no such documents were produced by her despite her such
statement. The court also noticed that no documents were
produced by her to prove her case that she had applied to
the municipality for licence. The Rent Control Court referred
to Sections 506 and 507 of the Municipalities Act and found
that prior registration with the municipal authorities is
necessary for starting tutorial college within the area of
municipality. The non-obtainment of registration was also
highlighted by the Rent Control Court as a circumstance
disproving the case of the landlady. The Rent Control Court
also noticed that it was the case of RW1 in evidence that
some of the students who were attending her classes in the
petition schedule building are still coming to her for tuition
at her residence. According to her, all these students come
from within the area of Kannur Municipal Town. She stated
further that the parents of these children were not prepared
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to send their children to classes considering the dilapidated
condition of the building and it was because of this that she
became compelled to stop the tutorial college. The court
noticed that apart from herself, no other witnesses were
examined and accordingly found that the version of RW1
that she had started tutorial college in the petition schedule
building on 10-7-2002 cannot be accepted. The absence of
a black board at the time of the commissioner’s visit is also
highlighted by the learned Rent Control Court. The presence
of benches and desks, according to the learned court, was
only part of the stage management done by the landlady in
view of the commissioner’s visit.
7. Even though the question as to whether the
landlady vacated the premises within six months without
reasonable cause did not arise for consideration in view of
the finding of the Rent Control Court that the landlady never
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occupied the building the above question was also
considered by the Rent Control Court. The court noticed
that the version of the landlady was that she stopped the
tutorial college on 10-11-2002. On the basis of the
Commissioner’s report based on the inspection on 22-11-
2002 the court found that the non-occupation was not a
recent one but it relates to a very long period. The court
has highlighted the presence of cob webs, huge quantity of
dust etc. and found that it is very difficult to believe the
version of the landlady that the college was stopped just 12
days prior to the inspection. The court also found it difficult
to accept the landlady’s case that it is due to the highly
dilapidated condition of the building that she became
compelled to stop the tutorial college. There is no evidence
to show that after effecting delivery any portion of the
building collapsed or got damaged further after the
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landlady occupied the building and started the tutorial
college. The court noticed that if the landlady is to be
believed, she started tutorial college in the middle of July,
2002 and continued the same till the month of August also.
These months, the court noticed, are months of heavy rain.
According to the court, if she could carry on classes during
these months, it is difficult to accept her case that she
became compelled to stop the classes in November when
the climatic conditions are very favourable. Accordingly it
was found that the landlady’s case that she became
compelled to vacate due to sufficient cause after occupying
the building for one month cannot be accepted. The Rent
Control Court also noticed that it was never the case of the
landlady in the original proceedings that the building is to
be pulled down and a new one is to be constructed. It was
noticed that the demolition exercise was begun only after
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the present RCP for repossession was filed. The tenant filed
an original suit seeking injunction against demolition.
Temporary injunction was issued. The Rent Control Court
found that no steps were taken by the landlady for keeping
the building in a habitable condition. The court also noticed
that no document was produced to prove the landlords’ case
that they have applied to the local authority for a building
permit. On the basis of all these findings the Rent Control
Court concluded that the intention of the landlord was
clearly to circumvent the provisions of sub-section (12) of
Section 11. Relying on the judgment of this Court in
Saramma Punnen v. Varkey, 1983 KLT 898 the Rent Control
Court found that the landlords were liable to be directed to
rebuild the demolished portion of the building and to provide
tiled roofing and then to restore possession of the building
to its original condition and thereafter to re-induct the
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tenant into possession.
8. The Appellate Authority considered the appeal filed
by the landlord. The Appellate Authority would rely on the
Advocate Commissioner’s report and hold that in the two
small rooms in the building six wooden benches, six wooden
desks, one wooden chair and one wooden table were found.
Analysing the oral evidence adduced by PW1 and RW1 the
Appellate Authority concluded that at the time of filing of the
present RCP, the petition schedule building was in a
dilapidated condition, evidently unfit for conducting tuition
classes. The Appellate Authority would thus accept the
evidence of RW1 the landlady that she started tuition
classes in the two small rooms and continued the classes till
10-11-2002 but became forced to stop the classes because
of the collapsible condition of the building. In this context
the Appellate Authority took into account the evident
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position that during the period of 8 years during which the
original rent control petition was pending the landlady was
never permitted by the tenant to carry out the repairs or
maintenance of the building and would thus indirectly hold
that the tenant was responsible for the physical condition of
the building at the time of delivery of the same to the
landlady. The existence of furniture and a writing on the
board exhibiting the name of the tutorial college are all
relied on by the learned Appellate Authority to accept the
landlady’s version that she did occupy the building. After
entering that finding, the learned Appellate Authority would
refer to various judicial precedents such as 1992(2) KLT 1
(Chandran v. Addl. District Judge), 1983 KLT 898 (Saramma
Punnen v. Varkey), 1981 KLT 708 (Thomas v. Kunju
Thomman) pertaining to the scope of sub-section (12) of
Section 11 and conclude that the landlady was justified in
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vacating the building before the expiry of six months. On
the basis of the above findings the appeal was allowed and
the RCP was dismissed.
9. We are unable to agree with the learned Appellate
Authority. According to us, there was no warrant for
interfering with the finding of the Rent Control Court that
the landlady did not occupy the building within one month of
taking delivery of the same through execution proceedings.
It was in the evidence of RW1 that there are documents
available with her for proving that she had conducted
tutorial classes in the building after she took possesion of
the building. But no documents whatsoever were produced
by RW1. This was a circumstance on the basis of which the
Rent Control Court rightly drew adverse inference against
the landlady. There was no warrant in the evidence for not
agreeing with the Rent Control Court. Section 506 of the
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Kerala Municipalities Act mandates that for starting a
tutorial college prior registration from the local authority is
necessary. The evidence of RW1 is that registration was
applied for, but not obtained. Significantly, no documents
which will prove that the landlady had applied for
registration as she claims are produced or caused to be
produced by the landlady. This again was a circumstance
warranting drawal of adverse inference against the landlady.
The landlady’s oral evidence was to the effect that 22 local
students who had failed in the SSLC Examination were
attending the tutorial college started by her. She even
stated that she is giving tuition to some of those students at
her residence even now. Not even one such student is
examined by her for proving that tutorial college was
actually conducted by the landlady after she took delivery of
the building from the tenant. So also, it is the landlady’s
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version that she became compelled to close down the
tutorial college because the parents of the students were
not willing to send their children to the building in view of its
dangerously dilapidated condition. If this were true, the
landlady could have examined at least one parent for
proving the same. It is true that a few pieces of benches
and desks were seen in the building by the Advocate
Commissioner, but significantly they were not seen arranged
as in class rooms. The black board, an indispensable item in
any class room was not found in the building at all. The
inference of the learned Rent Control Court that the benches
and desks full of dust and cob webs will not advance the
case of the landlady that she conducted tutorial college in
the building appears to us to be correct. It is ignoring the
tell-tale circumstances noticed by the Rent Control Court
and the adverse inferences rightly drawn by that Court that
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the Appellate Authority reversed the finding of that court
and accepted the landlady’s version that she conducted
tutorial college for a short while after taking delivery of the
building. We reverse the finding of the Appellate Authority
and restore the finding of the Rent Control Court on the
question as to whether the landlady occupied the petition
schedule building for conduct of tutorial classes.
10. In view of the finding that the landlady did not
occupy the building for conduct of tutorial college, the
further question whether there was reasonable cause for her
to discontinue the tutorial classes does not arise. Here also
we are unable to agree with the Rent Control Appellate
Authority. The Appellate Authority has accepted the
landlady’s version that in view of the dangerously
dilapidated condition of the building she decided to
reconstruct the building and started demolishing the
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building for the purpose of reconstruction and that she was
unable to continue with the reconstruction because of the
interim order passed by the civil court at the instance of the
tenant. The report of the commissioner is that though
dilapidation had clearly set in, the walls of the building were
sufficiently strong and sturdy. The evidence is that the
exercise of demolition was taken up by the landlady only on
coming to know about the instant motion of the tenant
under sub-section (12) of Section 11. Even on the
landlady’s own showing and conduct, at the time when she
took delivery she did not find the building unsafe or unfit
for conducting tutorial college, in which case one would
have expected her to apprise the Rent Control Court of her
inability to occupy the building for the need projected by her
in the original RCP.
11. Restoration of possession is the relief which is
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contemplated by sub-section (12) of Section 11 for the
tenant once it is seen that the landlord who obtained
possession of a building in pursuance of an order of eviction
under sub-section (3) has not occupied the same without
reasonable cause within one month of obtaining possession
or vacates the building without reasonable cause after
having occupied it. Ordinarily we would have been inclined
to direct the respondent to put the revision petitioner back
in possession. But even the Rent Control Court found that
the building in question is not presently in a habitable
condition. We are also convinced that without a full fledged
reconstruction the building in question is not going to
become habitable. The building has become totally unfit of
habitation only because of the partial demolition carried out
by the landlady after the institution of the proceedings
under Section 11(12) of the Act. The Rent Control Court
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directed the landlady to reconstruct the building and then
re-induct the tenant into the same. Such a direction was
passed accepting the landlady’s evidence that she wanted to
reconstruct the building. We are not at all inspired by that
evidence. The landlady is yet to obtain a permit from the
municipality for the proposed reconstruction. There is
nothing in the landlady’s evidence for holding that she has
got the wherewithal to carry out the reconstruction of the
building. Reconstruction will be a very expensive affair.
Therefore a direction to the landlady to reconstruct the
building and then re-induct the tenant will not be proper.
12. The authorities under the Rent Control Act are
expected to be governed by the principles of equity, justice
and good conscience while adjudicating the causes that
come up for decision before them. (see rule 11(8) of the
statutory rules) We are convinced that the respondent
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landlady has entailed liability under sub-section (12) of
Section 11 to reinstate possession of the building to the
evicted tenant the revision petitioner. In view of our finding
that the present condition of the building is dangerously
unsafe, we feel that on considerations of equity, justice and
good conscience the respondent can be directed to pay an
amount as compensation to the revision petitioner tenant,
large enough for fetching the revision petitioner every
month, a sum sufficient for paying the monthly rent
payable for a building similar to the one from which he was
evicted. The rent which was being paid by the revision
petitioner for the building from which he was evicted was
only Rs.300/-. But that rent was fixed years ago. The
building is admittedly situated in a very important area of
Kannur Municipal Town abutting the main thoroughfare in
that town. The building was a fairly large building with
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several rooms standing on a very spacious compound. It is
not disputed before us by any of the counsel that for taking
such a building now on lease in such an area of Kannur the
payable monthly rent will definitely exceed Rs.5000/-. We
are of the view that the amount to be paid by the
respondent to the revision petitioner should be large enough
to fetch the revision petitioner every month a sum of at
least Rs.1500/-. Going by the rates of interest presently
offered on giltedged securities by the Government of India
in order that a sum of Rs.1500/- is received every month, a
sum of Rs.2,25,000/- will have to be deposited. Therefore
allowing the rent control revision, we direct the
respondents other than R1 to R3 to pay to the revision
petitioner a sum of Rs.2,25,000/- in full and final settlement
of their liabilities to the revision petitioner and in respect of
the building which is subject matter of the proceedings
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within three months from today. On failure to make
payment within the time stipulated above the revision
petitioner is permitted to recover the amount together with
interest at the rate of 8% per annum from the respondents
and out of their assets including the petition schedule
premises.
RCR is allowed as above with costs.
PIUS C.KURIAKOSE, JUDGE
C.K. ABDUL REHIM, JUDGE
ksv/-