IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 19TH NOVEMBER 2009 / 28TH KARTHIKA 1931 RCRev..No. 220 of 2009() ------------------------ RCA.16/2004 OF RENT CONTROL APPELLATE AUTHORITY, PALAKKAD RCP.27/2000 OF RENT CONTROL COURT, PALAKKAD .................... REVISION PETITIONER/APPELLANT/PETITIONER --------------------------------------- JOSE, 12/901, KALYAN STREET, G.B.ROAD, KOPPAM AMSOM, PALAKKAD. BY ADV. SRI.S.SREEKUMAR SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.S.VAIDYANATHAN RESPONDENTS/RESPONDENTS/PETITIONERS: --------------- 1. RADHAKRISHNAN, S/O.VENKITASWAMY NAIDU, SREE RADHAKRISHNA TIMBER DEPOT, RAILWAY STATION ROAD, PAZHANI, TAMIL NADU. 2. NAGARAJAN, S/O.VENKITASWAMY NAIDU, SREE RADHAKRISHNA TIMBER DEPOT, RAILWAY STATION ROAD, PAZHANI, TAMIL NADU.(DIED) 3. RAJU, S/O.VENKITASWAMY NAIDU, SREE RADHAKRISHNA TIMBER DEPOT, RAILWAY STATION ROAD, PAZHANI, TAMIL NADU. 4. RAVI @ RANGARAJAN, S/O.VENKITASWAMY NAIDU, SREE RADHAKRISHNA TIMBER DEPOT, RAILWAY STATION ROAD, PAZHANI, TAMIL NADU. 5. SARASWATHI, D/O.VENKITASWAMY NAIDU, SREE RADHAKRISHNA TIMBER DEPOT, RAILWAY STATION ROAD, PAZHANI, TAMIL NADU. 6. PREMA, D/O.VENKITASWAMY NAIDU, SREE RADHAKRISHNA TIMBER DEPOT, RAILWAY STATION ROAD, PAZHANI, TAMIL NADU. 7. CHELLAMMAL, D/O.VENKITASWAMY NAIDU, SREE RADHAKRISHNA TIMBER DEPOT, RAILWAY STATION ROAD, PAZHANI, TAMIL NADU. ADDL.RESPONDENTS: 8. N.BABY SAROJA D/0 LATE NAGARAJAN, SREE RADHAKRISHNAN TIMBER DEPOT, RAILWAY STATION ROAD, PAZHANI, TAMIL NADU 9. N.DHANA SEKHAR S/O LATE NAGARAJAN, SREE RADHAKRISHNAN TIMBER DEPOT, RAILWAY STATION ROAD, PAZHANI, TAMIL NADU. 10. N.KANNAN, S/0 LATE NAGARAJAN, SREE RADHAKRISHNA TIMBER DEPOT, RAILWAY STATION ROAD, PZAHANI, TAMIL NADU. ADDL.R8 TO R10 ARE IMPLEADED AS LEGAL HEIRS OF THE DECEASED 2ND RESPONDENT AS PER ORDER DTD. 15-10-09 IN IA. 2979/09. SRI.V.CHITAMBARESH THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 19/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & K.SURENDRA MOHAN, JJ. ----------------------------------------------------------- RCR. No. 220 of 2009 ------------------------------------------- Dated this the 19th day of November, 2009 O R D E R Pius C. Kuriakose, J. The tenant is the revision petitioner. He challenges the judgment of the Rent Control Appellate Authority confirming the order of eviction passed against him by the Rent Control Court on the ground under Section 11(3) of Act 2 of 1965. In fact eviction was sought against him on the ground of arrears of rent also and the Rent Control Court passed order of eviction on that ground also. But the order of eviction passed under Section 11 (2)(b) was got vacated by the revision petitioner by making the requisite payments and hence in this revision we need be concerned only with the case for eviction on the ground of bona fide need for own occupation. 2. The case of the landlord as pleaded was that the petition schedule shop room is one of the rooms in a five RCR.. 220 of 2009 - 2 - room line building which belonged to one Venkitaswamy, the predecessor in interest of the petitioners in the RCP. The revision petitioner took the building from Venkitaswamy on a monthly rent of Rs.150/-. Upon the demise of Sri.Venkitaswamy the revision petitioner attorned to the petitioners in the RCP. The first respondent first petitioner in the RCP has a son by name Premkumar who is studying for business management. The second respondent second petitioner in the RCP has a son by name Kannan who has completed his studies in business management. It is averred that both Premkumar and Kannan are depending upon petitioners 1 and 2 in the RCP and that the building is required, so that they can start business in hardware, paint, cement and sanitary ware, for them to have independent sources of income. It is averred that it is very unlikely that Premkumar and Kannan will secure employment in the near future and that the family of the petitioners in the RCP are RCR.. 220 of 2009 - 3 - traditionally business men. It was averred that neither the petitioners in the RCP nor the dependent sons for whom the building is required have any building of their own at Palakkad or at Pazhani, their home town for starting business. The need projected therefore is to demolish the entire building and reconstruct the same with modern amenities for convenient occupation. It is claimed in the RCP that the petitioners have sufficient financial capacity to carry out the reconstruction and to start the proposed business. 3. Revision petitioner tenant resisted the application disputing the need projected under sub-section (3) of Section 11. It was stated that Premkumar or Kannan have no intention to come over to Palakkad and start business as proposed in the RCP. It was contended that the petitioners in the RCP and their children are permanently settled down at Pazhani for the past several years. It was also contended RCR.. 220 of 2009 - 4 - that Premkumar and Kannan are not dependent on the petitioners in the RCP and that they are having several other vacant spaces in and around Palakkad town. The tenant also contended that he is entitled to the benefit of the second proviso to sub-section (3) of Section 11 since the income from the business carried on in the petition schedule building accounts for his main source of livelihood and other suitable buildings are not available in the locality. 4. Rent control petitions urging similar grounds were instituted in respect of all the five rooms in the line building and apart from RCP. 27/2000 instituted against the revision petitioner, RCP. Nos. 24, 25, 26 and 28 of 2000 were also instituted. The Rent Control Court tried all the RCPs. Jointly and at trial the evidence consisted of the oral evidence of Pws. 1 to 3, Rws. 1 to 3 and Exts.A1 to A9 and B1 to B9. Reports submitted by the commissioners on the basis of local inspection conducted by them were marked as Exts.C1 RCR.. 220 of 2009 - 5 - to C3. On evaluating the evidence the Rent Control Court came to the conclusion that the need urged by the landlords was bona fide. It was also found that the tenant was unsuccessful in showing that they satisfy either of the ingredients of the second proviso to sub-section (3). Accordingly order of eviction was passed against the revision petitioner. In fact, orders of eviction were passed against the tenants in the other rent control petitions also. Before the appeal preferred by the revision petitioner to the Appellate Authority came up for final consideration the landlords had obtained possession of four out of the five rooms which were subject matter of the other rent control petitions. Alleging that the landlord has deviated from the original proposal , demolished three shop rooms and constructed a three storied building and rented out the same to strangers the revision petitioner filed IA. 1232/08 seeking deputation of an advocate commissioner for a local RCR.. 220 of 2009 - 6 - inspection and report. The commissioner filed his report which was marked as Ext.C4 by the appellate authority. It was reported in C4 that the ground floor of the newly constructed three storied building had two shutters of which one shutter room was found closed and in the other shutter room it was seen that a vegetarian hotel by name Sree Krishna Sagar was functioning. The commissioner also reported that the first and second floors of three storied building were rented out to tenants. Notwithstanding the above commission report the Rent Control Appellate Authority on reappraising the evidence would concur with all the conclusions of the Rent Control Court. It was noticed by the Appellate Authority that the order of the Rent Control Court was approved by the Appellate Authority by earlier judgments and that this court by orders in RCR No. 512/05 and 387/05 approved the judgment of the Appellate Authority and confirmed the order of eviction. The Appellate RCR.. 220 of 2009 - 7 - Authority accordingly dismissed the rent control appeal. In this revision under section 20 the tenant has urged various grounds and we have heard the submissions of Sri. S.Sreekumar, learned counsel for the revision petitioner and also those of Sri.V.Chitambaresh, learned senior counsel for the respondent landlord. 5. It was submitted by Sri.Sreekumar, that admittedly the landlord demolished three shop rooms and reconstructed a three storied building and rented out the same to strangers. The above act on the part of the landlord would abundantly show that the need projected by the landlord was not bona fide. It was submitted that if the need was bonafide the landlord would have commenced business in the newly constructed three storied building. The learned counsel referred to Ext. C4 commission report and submitted that the report was clear to the effect that of the two floors in the ground floor in the newly constructed RCR.. 220 of 2009 - 8 - building one floor had been let out for conducting a vegetarian hotel byname Sree Krishna Sagar. The commissioner also reported that the first and second floors of the new building were let out to tenants. No objection was filed by the landlord to Ext. C4. The observation of the Appellate Authority that the landlord had started some temporary business in the newly constructed building. The petition schedule buildings were also required for reconstruction if the need projected in the RCP was to be accomplished is not correct. This was not the case of the landlord. The appreciation of the evidence by the Appellate Authority was totally erroneous. The landlords are having lucrative business in Pazhani in Tamil Nadu and they have no intention to start any business in the petition schedule building after getting eviction. The event subsequent to passage of the order of eviction by the Rent Control Court will show that the need was not bona fide. Having issued a RCR.. 220 of 2009 - 9 - commission on the basis of the tenant's application and having so obtained Ext.C4 report from that commissioner, the Appellate Authority should have relied on C4. Mr.Sreekumar asserted that even now Hotel Sree Krishnasagar is being conducted in the ground floor portion by Mr.Hariharan alias Hari, the person whose presence was noted by the commissioner in Ext.C4. We have prima facie impressed by the above submission. We by order dated 3- 11-2009 issued notice to Sri.Hariharan alias Hari to be present before the court on 12-11-2009. He was accordingly appeared before us on 12-11-2009. We enquired of him as to whether he was the proprietor of Sree Krishna Sagar, vegetarian hotel and as to whether the above business continues to run. He answered our question and accordingly we passed the following order: “Mr.Hariharan alias Hari S/o Venkatachalam, appeared before us in response to the notice by this court. He informed us that the vegetarian restaurant “Sree Krishna Sagar: belonged to Sri.Nagarajan, the RCR.. 220 of 2009 - 10 - landlord. According to him,, he was only managing the same. He informed us further that the business is closed down though the name board continues to be installed on the building. He also informed us that the business was being conducted without obtaining any licence from the Palakkad Municipality. According to him, Sri. Nagarajan had submitted application for licence about one year before, but the application was never granted by the Municipality. Under the above circumstance, we direct T.C.Suresh Menon, learned Standing Counsel for the Municipality to produce before us licence application, if any, submitted by Sri.Nagarajan for conduct of restaurant in the newly constructed building. If there are other documents available with the Municipality, which will atleast indicate that vegetarian restaurant “Sree Krishna Sagar” was being conducted by Nagarajan, such documents will also be produced by Sri.T.C.Suresh Menon”. On 18-11-2009 Sri.T.C.Suresh Menon, standing counsel for the Palakkad Municipality submitted before us that the application stated by Sri.Hariharan would have been submitted by Sri.Nagarajan, the landlord for licence, which is not seen in the file. But he placed before us the file kept by the Municipality regarding the new construction put up by Sri.Nagarajan after getting possession of the other rooms RCR.. 220 of 2009 - 11 - which were subject matter of the RCPs. The learned counsel submitted that since it was noticed that the above construction was in violation of the permit given, the Municipality initiated action for demolition and as part of the above action orders were passed for cancelling the trade licence if any issued for the conduct of business in the building. Therefore, according to the learned counsel, as matters obtain now, nobody has been issued with trade licence for conduct of business in the ground floor portion of the new building which is found to be unauthorised. The above Municipal file No.EJBR 569/06-07/PW5 will show that the above submission of the standing counsel for the Municipality is correct, but fact remains that the counsel did not produce any application for licence submitted by anybody for doing business in the building. 6. On being informed about the facts revealed from the file Mr.Sreekumar would argue that Hariharan's version that RCR.. 220 of 2009 - 12 - he was only the manager of Sree Krishna Sagar managing the same on behalf of Sri.Nagarajan, the landlord is not correct. According to him, the Bharath Gas connection issued to the building stood in the name of Sri.Harijaran. The above submission was opposed by Sri.Chitambaresh, senior counsel. Mr.Chitambaresh would support the judgment of the Appellate Authority on the various reasons stated therein. He reminded us of the contours of the jurisdiction under Section 20 of Act 2 of 1965. He submitted that the above jurisdiction is revisional in nature and this court is not expected to reappraise the evidence and substitute conclusions of facts entered by the fact finding authorities unless those conclusions can be described as wholly unreasonable or not based on evidence. He submitted that the impugned judgment was in fact approved by this court in the revision petition pertaining to one of the cases covered by the common judgment. The apprehension RCR.. 220 of 2009 - 13 - of the revision petitioner that the building will be let out by the landlord to somebody else can be taken care of by this court by issuing appropriate directions. Learned senior counsel referred to subsection (12) of Section 11 of Act 2 of 1965. 7. We have considered the rival submissions. We have scanned the order of the Rent Control Court and the judgment of the Rent Control Appellate Authority who under the statutory scheme is the final court on facts. We have also gone through the judgment of this court in RCR. No. 512 of 2005 and RCR. No. 387 of 2005 approving the eviction order passed by the Rent Control Court and the Appellate Authority in respect of two adjacent rooms on the same ground and on the same set of evidence. We have made a quick survey of the evidence in the case to the extent necessary for appreciating the arguments especially, Ext.C4 commission report filed before the Appellate RCR.. 220 of 2009 - 14 - Authority. 8. It is a fundamental principle that causes should be adjudicated on the basis of the facts which exist as on the date of the commencement of the lis. However, subsequent events having a fundamental impact on the right/liability of the parties to obtain/suffer order of eviction can have relevance in rent control proceedings. The finding of the Rent Control Court and the Appellate Authority that the landlord needs the building for own occupation after reconstruction along with the other rooms in the larger old building is founded on evidence and approved by this court by judgments in RCR Nos. 512/05 and 387/05. We don't find any infirmity, illegality or irregularity as envisaged by section 20 of Act 2 of 1965 to interfere with that finding. Before us, it is the subsequent event of the landlord putting up a three storied building after demolishing those rooms he got vacant possession of and the letting of one out of the RCR.. 220 of 2009 - 15 - two rooms in the ground floor to one Hari who was reported under Ext.C4 to be conducting Sree Krishna Sagar Restaurant, that was highlighted before us by Mr.Sreekumar. It is true that the landlord did not produce before this Court any document which will show that the above restaurant was being conducted by him with Hari as the manager. But then Hari himself appeared before us and submitted that he was the manager and that at any rate, the business is closed down. The Municipal record will also show that at present nobody is issued with any licence for conduct of business in the ground floor of the newly built building. Mr.Sreekumar also did not submit before us that even now Hotel Sree Krishna Sagar or for that matter any other business is being conducted in the ground floor portion of the building put up by the landlord in the place of the three rooms got vacated already. Under the above circumstances we find it extremely difficult to accept the RCR.. 220 of 2009 - 16 - revision petitioner's assertion that the room where Sree Krishna Sagar was being conducted at the time of Commissioner's inspection had been let out to Hari. At any rate, we are unable to say that the conduct of Sree Krishna Sagar for a while in the ground floor portion of the building put up is a subsequent event of such a magnitude as to completely eclipse the bona fide need urged by the landlord and approved by this court also in proceedings in respect of the adjacent rooms. After all any order of eviction passed under sub-section (3) of Section 11 is subject to sub-section (12) of Section 11. If landlord does not occupy the building where from the revision petitioner is evicted within the period mentioned in subsection (12) of Section 11 the statutory consequences provided under sub-section 12 of Section 11 will certainly follow. In view of the assertion of Mr.Sreekumar that the gas connection given by M/s. Bharath Gas in respect of the newly constructed premises RCR.. 220 of 2009 - 17 - stands in the name of Sri.Hariharan alias Hari we are inclined to issue certain orders against Sri.Hariharan also. 9.The result of the above discussion is that the RCR will stand dismissed and order of eviction will stand confirmed. The revision petitioner is granted six months time from today for vacating the premises on condition that he will file an affidavit before the execution court or the rent control court as the case may be within two months undertaking to give peaceful surrender of the petition schedule room to the landlord and that arrears of rent if any will be discharged and further that occupational charges at the current rent rate will also be paid till actual surrender is made. The respondent landlord is informed that if he does not occupy the premises, the consequences provided under subsection (12) of Section 11 of Act 2 of 1965 will follow. The respondents landlords are restrained from letting out any portion of the building presently constructed (the new RCR.. 220 of 2009 - 18 - building reported by the advocate commissioner in Ext.C4) to anybody else for a period of three years. Sri.Hariharan alias Hari S/o Venkitachalam is restrained by an order of injunction from entering into the above building. The parties are directed to suffer their respective costs. File No.EJBR 569/06-07/PW5 of Palakkad Municipality is returned to the standing counsel on condition that, if directed, the same will be produced again. PIUS C.KURIAKOSE, JUDGE K.SURENDRA MOHAN, JUDGE ksv/-