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.
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RCR No.201 of 2007
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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
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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
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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
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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
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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
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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.
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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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