IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 15TH JANUARY 2010 / 25TH POUSHA 1931 RCRev..No.333 of 2004(C) ----------------------------- RCA.12/2001 of RENT CONTROL APPELLATE AUTHORITY (I ADDL. DISTRICT COURT), PALAKKAD RCP.35/1990 of PRL.MUNSIFF COURT (RENT CONTROL), PALAKKAD .................... REVISION PETITIONERS/RESPONDENTS/PETITIONERS ------------------------------------------------------------ 1. N.ABDUL AZEEZ, S/O.E.NOOR RAWTHER. 2. YOONUS, S/O.ABDUL AZEEZ. THE REVISION PETITIONERS ARE RESIDING AT M.A.COLONY, MISSION COMPOUND, KOPPAM AMSOM, PALAKKAD TALUK, PALAKKAD DISTRICT. BY ADV. SRI.D.KRISHNA PRASAD SRI.D.NARENDRANATH SRI.M.HARISHARMA SRI.T.P.ELDHOSE RESPONDENT(S)/APPELLANT/RESPONDENT: ------------------------------------------------- SHAHUL HAMEED, S/O.UMMER RAWTHER, STATIONARY BUSINESS, THAJ BUILDINGS, COLLEGE ROAD, PUTHUR AMSOM, PALAKKAD TALUK, PALAKKAD DISTRICT. ADV. SRI.V.CHITAMBARESH SRI.T.C.SURESH MENON THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 15/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ. ``````````````````````````````````````````````````````` R.C.Rev. No. 333 of 2004 C ``````````````````````````````````````````````````````` Dated this the 15th day of January, 2010 O R D E R Pius C. Kuriakose, J. The landlord is in revision being aggrieved by the judgment of the Rent Control Appellate Authority confirming the order of the Rent Control Court dismissing his application for eviction on the ground under sub-section (3) of Section 11. The parties will be referred to as landlord and tenant. The landlord is the owner of the petition schedule building as well as the adjacent building which has two rooms. He filed RCP No.35/90 (subject matter of the present RCR) and RCP.16/90. The petition schedule building has an area of 288 sq.ft. and the respondent is carrying on business in stationery in the said building. The adjacent building, subject matter of RCP.16/90, has an area of 236 sq.ft. and the same at the time of institution of RCP was in the possession of a tenant by name Dr.Unnikrishnan Nair. Even though eviction was sought by the landlord on the grounds of arrears of rent, the ground that the tenant has used the building in RCR.333/04 : 2 : such a manner as to reduce the utility and value of the building materially and permanently and also on the ground of bonafide need for own occupation and also the ground of additional accommodation under sub-section (8) of Section 11. It is conceded by both sides that the only ground which survives in this case is the ground under sub-section (3) of Section 11. The need which was projected in both the RCPs under sub-section (3) of Section 11 was that the petitioners, who are father and son, bonafide need to conduct a grocery shop in both the rooms, after converting the same as a single room by removing the partition wall. The evidence before the Rent Control Court consisted of the oral evidence of the landlords as PW1 and PW2 and that of RW1, the tenant and RW2, a witness. The documentary evidence consisted of Exts.A1 to A4 and B1 and B2 apart from Ext.C1 Commission report submitted by Commissioner who conducted local inspection. 2. The need projected by the landlord in the context of sub section 3 of section 11 was that he needs the two rooms for starting grocery business. The tenant disputed the bona fides of the need. The tenant contended that the first petitioner in the RCP, RCR.333/04 : 3 : the father is conducting a dairy farm and that the second petitioner in the RCP is a medical representative and that neither of them have the need to start any grocery business. Tenant also contended that he is entitled to the protection of the second proviso to sub section 3 of section 11. By the time the Rent Control Petition came up for trial the room which was occupied by Dr. Unnikrishnan Nair had fallen vacant and the Rent Control Court in the first instance dismissed the RCP holding that the room vacated by Dr. Unnikrishnan Nair having an area of 236 sq. ft. is available with the landlord and it will be possible for the landlord to accomplish his need by utilising that building. However, the court did not enquire into the question whether the tenant is entitled to the protection of the second proviso to sub section 3. The Rent Control Court, therefore, by order dt.10/04/96 dismissed the Rent Control Petition. The Appellate Authority considered RCA.43/96 filed by the landlords and vacated the finding of the Rent Control Court that the need is not bona fide. This was done on the reason that the Rent Control Court had not appreciated the pleadings raised by the landlord that the landlord requires the petition schedule room as well as the room which was occupied by RCR.333/04 : 4 : Dr. Unnikrishnan Nair for the proposed business. Thereafter, the RCP was remanded to the Rent Control Court for a fresh decision as to whether the landlord was entitled for an order of eviction under sub section 3 of section 11. Opportunity was given to both sides to adduce whatever further evidence they wanted to. The tenants filed CRP.89/99 before this Court and this Court by judgment dt.29/06/2000 confirmed the remand passed by the Appellate Authority holding that the same does not warrant any interference. Pursuant to that the Rent Control Court considered the Rent Control Petition again. Appreciating the evidence on record, the Rent Control Court concluded that the need was bona fide. That court also found on the basis of the evidence that the tenant was unsuccessful in establishing that he satisfies either of the ingredients of the second proviso to sub section 3 of section 11. It was also found that the first proviso to sub section 3 of section 11 cannot have any application in this case since the landlord was having a special reason for insisting that two rooms are required for conducting the proposed business. Accordingly, order of eviction was passed by the Rent Control Court on the ground under sub section 3 of section 11. RCR.333/04 : 5 : 3. The tenants preferred an appeal to the Appellate Authority and under the impugned judgment the Appellate Authority has set aside the order of eviction. According to the Appellate Authority, the circumstances that the landlord has not occupied the adjacent building vacated by Unnikrishnan Nair in full despite the same having an area of 236 sq. ft. is indicative of the absence of bona fides in the need projected by the landlord that the landlord wants both the rooms for conducting the business in grocery. The circumstances that the landlord did not take out a commission and did not adduce any evidence as to why it is not possible for the landlord to utilise the entire area in the adjacent room is highlighted by the Rent Control Appellate Authority. The Appellate Authority takes the view that if the need was genuine, the landlord would have occupied the entire area in the adjacent room and conducted grocery business to the best possible extent in that room. Instead it was noticed that the landlord did not do any business at all in the adjacent room for a period of three years and only after the order of remand was passed in the first instance by the Rent Control Appellate Authority did the landlord occupy a small portion of the adjacent building. The Appellate Authority was RCR.333/04 : 6 : not at all impressed by the oral evidence produced by PW2/the landlord's son. It was noticed that PW2 did not offer any explanation as to why it is not possible for the landlord to occupy the entire area of the adjacent room. Relying mainly on these circumstances, the Appellate Authority concluded that the landlord cannot have a bona fide need to occupy the petition schedule building also for the projected need of conducting the grocery business. 4. The Appellate Authority did not upset the finding of the Rent Control Court that the tenant is not entitled for the protection of the second proviso to sub section 3 of section 11. However, the Appellate Authority practically vacated the finding entered by the Rent Control Court in the context of the first proviso to sub section 3 of section 11. Ultimately the Appellate Authority allowed the appeal and dismissed the Rent Control Petition to the extent the same relates to the ground under sub section 3 of section 11. 5. We have heard the submissions of Sri.D.Krishna Prasad, the learned counsel for the revision petitioners and Sri.V.Chitambaresh the learned counsel for the respondent/ landlord. While Sri.Krishna Prasad assailed the decision of the RCR.333/04 : 7 : Rent Control Appellate Authority on the grounds raised in the memorandum of revision, Sri.Chitambaresh would support the same on the reasons stated in the judgment of the Appellate Authority. We have very strongly considered the rival submissions addressed at the Bar. We have scanned the impugned judgment of the Appellate Authority and the order of the Rent Control Court. We have also gone through the judgment of the Appellate Authority in RCA.43/96, the original order dt.10/04/96 passed by the Rent Control Court as well as the judgment of this court in CRP.89/99. 6. The nature of the jurisdiction in which we are presently sitting is revisional. Under the statutory scheme, the final court on facts is the Rent Control Appellate Authority. That authority has come to a conclusion that the need projected by the landlord that they want to occupy the petition schedule room as well as the adjacent room having an area of 236 sq. ft. are required for the conduct of grocery business is not bona fide. The above finding is entered mainly on the reason that even after having obtained vacant possession of the adjacent room the landlord has not occupied the full area of the adjacent room for the proposed RCR.333/04 : 8 : business. It is found on the basis of available evidence including Commission Report that the landlord is occupying only a very small portion of the area in the adjacent room and that too for conducting some business. The Authority noticed that PW2 the second petitioner in the RCP who was examined after the remand was passed by the Appellate Authority had no explanation to offer as to why the landlord is not occupying the adjacent room in full. It is on that reason that it is found that the need of the landlord to occupy both the rooms for conducting grocery business if not bona fide. 7. Of course, the Appellate Authority appears to have also found that the first proviso to sub section 3 of section 11 will apply. We do not think so. First proviso to sub section 3 of section 11 cannot have any application in this case for two reasons. First, the obtainment of the vacant possession of the adjacent room was a subsequent development. Admittedly the landlord is in occupation of at least a small portion of that room. Thus, no vacant building in full is available with the landlord presently in order that first proviso to sub section 3 of section 11 applies. At the same time, the finding that the need is not bona fide for the reason that the RCR.333/04 : 9 : landlord has not occupied the adjacent room previously occupied by Dr.Unnikrishnan Nair in full indicates that the need of the landlord to carry on grocery business in both the rooms is not bona fide is a reasonable finding founded on evidence. If that be so, we do not find any illegality, irregularity or impropriety as envisaged by section 20 tainting the judgment of the Appellate Authority. But, we notice that the monthly rent presently paid by the respondent to the revision petitioner is only Rs.150/-. The said rent in our opinion is grossly inadequate and far below the fair rent which the Rent Control Court may be inclined to fix taking into account the importance of the locality where the building is situated. We re-fix the rent payable by the respondent at Rs.1,000/- prospectively with effect from 01/03/10. This re-fixation is tentative and it is open to either of the parties to move the Rent Control Court for regular fixation of the fair rent. We also make it clear that this judgment will not stand in the way of the landlord applying for eviction on the ground of additional accommodation under sub section 8 of section 11 once the landlord occupies the adjacent room in full and conceives a bona fide need for occupying the petition schedule building for additional RCR.333/04 : 10 : accommodation. 8. The RCR is dismissed subject to the above observations and directions. (PIUS C. KURIAKOSE, JUDGE) (C.K.ABDUL REHIM, JUDGE) aks/kns