IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 9TH FEBRUARY 2009 / 20TH MAGHA 1930 RCRev..No. 308 of 2008() ------------------------ RCA.27/2007 of II ADDL. DISTRICT COURT, TRIVANDRUM RCP.40/2005 of I ADDL.M.C.,TRIVANDRUM .................... REVISION PETITIONER:APPELLANT/COUNTER PETITIONER: -------------------- T.RAJAGOPAL, PROPRIEOR, SUBHA AUTOMOBILES, EAST FORT, THIRUVANANTHAPURAM. BY ADV. SRI.P.GOPALAKRISHNAN NAIR RESPONDENT:RESPONDENT/PETITIONER --------------- M/S RAJADHANI HOTELS & TOURISTS ENTERPRISES (P) LTD., SAMTHRIPTHI, INSIDE FORT, THIRUVANANTHAPURAM, REPRESENTED BY ITS DIRECTOR, BIJU RAMESH. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 09/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS.C.KURIAKOSE & C.K.ABDUL REHIM, JJ. - - - - - - - - - - - - - - - - - - - - - R.C.R.No. 308 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of February, 2009 ORDER Pius.C.Kuriakose, J. The tenant against whom order of eviction has been passed by the rent control court on the ground under Section 11(3) is the revision petitioner. In fact, the respondent landlord invoked the ground for eviction under Section 11(4)(iii) also. But the rent control court declined eviction on the ground under Section 11(4)(iii) and there was no appeal by the landlord against that order. The only ground which survives for consideration now is the ground under Section 11(3). 2. The need projected by the landlord in the context of Section 11(3) was that the petition schedule building is required so that a reception unit having an extent of 2500Sq.ft. can be provided for in the landlord's hotel by name Rajadhani which is situated inside Thiruvananthapuram fort area. It was specifically alleged by the landlord that though the landlord is having 750 Sq.ft. of space in the ground floor, the landlord is not in a position to make use of that space RCR.No.308/08 2 for the purpose of reception unit since the petition schedule building is situated in between that space and the remainder portion of the larger building in which the hotel is being conducted. It was alleged that the reception portion of the hotel is presently put up in a small space underneath the staircase in the ground floor of the building. 3. The bona fides of the need and the claim was strongly disputed by the revision petitioner. It was contended by the revision petitioner that the rent control petition was liable to fail in view of the first proviso to Section 11(3). It was also contended by the revision petitioner that he is entitled to the protection of second proviso to Section 11(3). 4. The evidence before the rent control court consisted of the oral testimonies of PWs 1 to 4 and documents Exts.A1 to A8 on the side of the landlord, while the same consisted of the oral testimony of CPW1- the tenant and the documents Exts.B1 to B4. Apart from that, there was commissioner's report Ext.C1 and plan Ext.C1(a). Exts.X1 to X3 were also caused to be produced by the landlord. 5. The rent control court on evaluation of the evidence concluded that the claim and the need of the landlord projected in the RCR.No.308/08 3 rent control petition were bona fide. It was concluded that the rent control petition was not liable to fail under the first proviso to Section 11(3). In the context of the tenant's eligibility for protection of second proviso to Section 11(3), it was found that the tenant has not established that he satisfies either of the ingredients of that proviso. The rent control appellate authority on a re-appreciation of the entire evidence on record concurred with all the conclusions of the rent control court and dismissed the rent control appeal. 6. Before us, Sri.P.Gopalakrishnan Nair, learned counsel for the petitioner argued that the finding of the rent control court and the appellate authority that the landlord needs the petition schedule building for starting a reception unit is not bona fide. He submitted that at any rate the landlord has got enough space in the multi storied building belonging to him which can be utilised by him for reception purpose even if the need is genuine. Sri.Gopalakrishnan Nair also submitted that the finding of the courts below regarding the tenant's eligibility for protection of second proviso is incorrect. 7. We have considered the submissions of Sri.P.Gopalakrishnan Nair and we have carefully gone through the RCR.No.308/08 4 judgment of the authorities below and particularly the judgment of the rent control appellate authority which under the statutory scheme is the final court on facts. We are of the view that the finding concurrently entered by the courts below that the petition schedule building is bonafidely need by the respondent landlord so that they can utislise the space of the petition schedule building as well as the space adjacent to the same already in the possession of the landlord, which the landlord is unable to make use for the avowed purpose on account of its present situation, is a reasonable finding and is founded on evidence. Admittedly, the respondent is conducting a posh hotel. The respondent aspires to get star classification from the Tourism Department as well as bar licence from the Excise Department of the state. The contention of the landlord that in order that star classification is obtained from the Tourism Department, a spacious reception area is indispensible and the further contention that reception area will be necessary for the purpose of obtaining bar licence is not seriously in dispute. According to us, this is a case where there is justification for presuming that the need of the landlord is bona fide. After all the landlord is the best judge of his requirements and the enquiry of the authorities under the Rent Control RCR.No.308/08 5 Act is only to decide whether the need projected by the landlord is actuated by any oblique motives. In the instant case, we do not find any specific oblique motive attributed by the revision petitioner to the landlord in projecting the need projected in the rent control petition. At any rate, no oblique motive has been established. We do not find any illegality, irregularity or impropriety about the finding of the rent control court and the appellate authority that the need is bonafide. As for the first proviso to Section 11(3), it is conceded by the landlord that the landlord has possession of some 750 sq.ft. of area, but special reasons which prevents the landlord from utislising that area as reception area have become evident in the case and therefore the situation that the landlord possesses so much of area will not be a disqualification for the landlord under the first proviso to section 11(3) Coming to the tenant's eligibility of protection of second proviso to Section 11(3), it is trite that it is the tenant's burden to establish that he satisfies both the ingredients of the proviso. We find that the authorities below have concluded at a correct appreciation of the evidence which came on record that the above burden was not satisfactorily discharged by the tenant. RCR.No.308/08 6 The result is that, we do not find any warrant for invoking the revisional jurisdiction of this court under Section 20 of Act 2 of 1965. As his last submission, Sri.P.Gopalakrishnan Nair sought for a year's time to vacate the petition schedule building. We are not inclined to grant so much of time, that too in the absence of respondent. However, we feel that there is justification for granting six months time from today. Therefore, even as we confirm the order passed by the authorities below, there will be a direction to the execution court not to effect delivery of petition schedule building in favour of the respondent for a period of six months from today provided the revision petitioner submits an affidavit before the execution court within two weeks from today stating that he will peacefully surrender the building to the landlord on or before 09-08-2009. PIUS.C.KURIAKOSE JUDGE C.K.ABDUL REHIM JUDGE sv. RCR.No.308/08 7