IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 3RD MARCH 2009 / 12TH PHALGUNA 1930 CRP.No. 946 of 2002(A) --------------------------------- RCA.12/1998 OF RENT CONTROL APPELLATE AUTHORITY, (ADDL.DISTRICT COURT)ALAPPUZHA. RCP.NO.51/1992 OF ADDL.MUNSIFF COURT,CHERTHALA. .................... REVISION PETITIONERS/ RESPONDENTS/ PETITIONERS: ---------------------------------------------------------------------------------- 1. SOCIAL SERVICE GUILD OF ASSISSI SISTERS, REG.NO.249, GREEN GARDENS, CHERTHALA, REPRESENTED BY ITS PRESIDENT, SISTER GENERAL OF ASSISSI SISTERS, SR.MICHAEL FRANCIS. 2. THIRUHRIDAYA KANYAKALAYAM, MARUTHORVATTOM MURI, THANNEEMUKKOM VADAKKU VILLAGE REPRESENTED BY SR.SEBASTINA MARY. BY ADV. MR.BOBBY JOHN. RESPONDENT/ APPELLANT/ RESPONDENT: --------------------------------------------------------------- NARAYANA MOOPPAN, S/O.MOORTHI MOOPAN, CHIRATHA PARAMBU VELIYIL, CHERTHALA VADAKKU MURI, CHERTHALA VADAKKU VILLAGE. BY ADV. MR.G.GOPAKUMAR. THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/03/2009, ALONG WITH C.R.P. NO. 3218/2001 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. PIUS.C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ CRP Nos. 3218,3458, 3457 of 2001, 585, 757, 758, 759,946 of 2002 ------------------------ Dated this the 3rd day of March, 2009 ORDER Pius C.Kuriakose, J. The landlords petitioners before the rent control court are the revision petitioners. The rent control petitions were instituted by them invoking the grounds under Sections 11(3) and 11(7) of the Act 2 of 1965. According to them, the first revision petitioner is a religious and charitable institution rendering considerable service to the pubic in the field of health and education and they bona fide require the buildings which are subject matter of the rent control petitions as well as another independent building situated nearby for the purpose of starting a consultation clinic - cum - dispensary in Cherthala town. The proposal, as stated in the rent control petitions, is to utilise the buildings, which are subject matter of the rent control petition, for the purpose of consultation clinic - cum -dispensary and to utilise the nearby independent building as residential quarters for the duty doctors who will be attached to the clinic. It is urged in the rent control petitions that the proposed consultation clinic CRP.No.3218/2001 &others 2 -cum -dispensary is to be a memorial for late Rev. Fr.Joseph K.W.Thomas who was the founder of the green garden institutions conducted by the first petitioner and who incidentally was the Assistant Vicar of St.Mary's Church, Muttom, which is situated very near to the petition schedule buildings. The rent control petitions were resisted by the tenants raising various contentions. All the petitions were ordered to be tried jointly and were accordingly enquired into by the rent control court. That court on appreciating the evidence would accept the case of the landlords that they are institutions covered by Clause 7 of Section 11 and found that the requirement is bona fide. Some of the tenants claimed protection of the second proviso to Section 11 (3) of the Rent Control Court . The Rent Control Court found that those tenants had not succeeded in establishing that they satisfied both the ingredients of that proviso. Resultantly the rent control court passed an order of eviction under Sections 11 (3) and 11(7) taking the view that the two sub sections are not mutually exclusive. It will be noticed that the only witness, who was examined on the side landlords before the Rent Control Court was PW1 - the manager who was collecting the rent from CRP.No.3218/2001 &others 3 the tenants as authorised by the petitioners in the rent control petitions. The rent control appellate authority considering the appeals preferred by the various tenants would hold that the bona fides of the claim was not established by the oral evidence adduced by the PW1. That authority found that there is nothing on the record to hold that the first petitioner in the rent control petition had anything to do with the buildings in question. That authority held that Ext.A1 bye laws pertaining to the first petitioner will not show that the second petitioner in the rent control petitions was an institution attached to the first petitioner. That authority further noticed that being an institution, if as a matter of fact, a decision has been taken to start a consultation clinic – cum- dispensary as a memorial for late father Rev.Father Joseph K.W. Thomas, there will be some decision taken in that regard by the management of the first petitioner and that in the absence of any document produced in that regard by the first petitioner it was difficult to believe the version of the petitioners that they have bona fide need to establish a consultation clinic – cum – dispensary. The appellate authority also noticed that the case pursued in evidence was to demolish CRP.No.3218/2001 &others 4 the existing buildings and to construct new buildings in its place and that such a case does not have proper foundation in the pleadings. In the above context it was further noticed that since the Kerala Building Rules are applicable to the Cherthala Municipal Town, in order to carry out demolition and reconstruction of any building, it is necessary that construction plan is got approved and a permit issued by the local authority. Non production of the plan and licence and complete absence of pleadings regarding the reconstruction was also highlighted by the appellate authority as a circumstance to disagree with the conclusions of the rent control court. The appellate authority would describe the mode of appreciation of evidence by the rent control court as super special. 2. We have heard the submissions of Sri. Bobby John, learned counsel for the revision petitioners and also those of Sri.John Joseph, learned counsel for the respondents in CRP 758/2002 and also those of Sri.G.Gopakumar, learned counsel for the respondent in the other cases. 3. The learned counsel for the revision petitioners submitted that the rent control appellate authority erred CRP.No.3218/2001 &others 5 seriously in interfering with the findings of the rent control court which were founded on evidence which was actually available on record. He submitted that PW-1 was the manager of the various institutions, which were being conducted by the revision petitioners in Cherthala for years and hence his competence to give evidence on the side of the petitioners should not have been doubted. The learned counsel submitted that the finding of the rent control appellate authority that the first petitioner has absolutely nothing to do with the buildings in question and that ownership of the buildings is with the second petitioner only, has been rendered overlooking the undeniable reality that the first petitioner is a congregation of nuns and the second petitioner is a convent wherein group of nuns belonging to the first petitioner congregation are living. The learned counsel argued that the scope and ambit of sub section (7) of Section 11 was not appreciated properly by the rent control appellate authority and this has resulted in prejudice to the revision petitioners. The learned counsel further submitted that the authorities under the Rent Control Act are not to be concerned with propriety title over the building and their concern need only be regarding the CRP.No.3218/2001 &others 6 existence of a landlord tenant relationship between the parties. In the instant case, such a relationship admittedly exists between the various respondents and the second petitioner. The learned counsel submitted that it is not an invariable rule that bona fides of a claim for own occupation can be established only by examining the landlord. The counsel argued that the contentions more seriously pursued by the respondents were regarding their eligibility for protection of the second proviso to Section 11(3) and all the tenants failed in establishing that they are so eligible. 4. The learned counsel for the respondents tenants would oppose the submissions of the learned counsel for the petitioners. According to them, under the scheme of the Rent control Act the final authority on facts is the rent control appellate authority and this court in revision is not authorized to substitute the findings of that authority by fresh findings. According to the learned counsel, absolutely no reason is made out for interfering with the order passed by the appellate authority. The learned counsel pointed out that going by the pleadings the need projected is to utilise the petition schedule buildings as they exist now with CRP.No.3218/2001 &others 7 some alternations or modifications. But, the case made out in evidence is that the existing building will be demolished and new building will be constructed. To carry out reconstruction, approved plan and building permit from the local authority is necessary. No such plan or building permit is produced. The learned counsel would oppose the prayer of the landlords' counsel for a remand. According to him, at the most this court may give leave to the petitioners to file a fresh rent control petition with appropriate pleadings. 5. We have very anxiously considered the rival submissions addressed at the Bar in the light of the applicable statutory provisions and relevant judicial precedents. The eviction grounds, which are specifically invoked in the rent control petitions, are the grounds under sub sections (3) & (7) of Section 11 of the Act 2 of 1965. The first petitioner in the rent control petition is the first revision petitioner viz. Social Service Guild of Assissi Sisters, Green Gardens Cherthala represented by its President Sister General of Assissi Sisters, Sr.Michael Francis. The second petitioner in the rent control petitions is the 2nd revision petitioner viz.Thiruhridaya Kanyakalayam, represented CRP.No.3218/2001 &others 8 by Sr.Sebastina Mary, who is obviously the Sister Superior of the Kanyakalayam. According to the petitioners, the first petitioner is a charitable institution established by Assissi Sisters and registered under the Act 12 of 1965. The first petitioner is governed by Ext.A1 bye laws and under Ext.A1 all the assets of the Green Garden Institutions shall be the assets of the first petitioner. The first petitioner is a charitable and religious public institution and is conducting various social welfare activities under the auspices of Assissi Sisters such as Leprosy hospital, General Hospital, Schools, Convent, etc. which are all intended to serve public and especially the poor. The second petitioner Convent is one among the Green Garden Institutions and is inhabited by the sisters who are conducting the various Green Garden Institutions. The need projected is the commencement of a consultation clinic-cum-dispensary in Cherthala Town as part of the social activities being undertaken by the petitioners in hospital services. The petitioners have invoked both Sections 11 (3) and 11(7). If the claim of the petitioners that they are religious charitable and public institutions is correct, there is no necessity for them to invoke sub section (3 )of Section 11 along CRP.No.3218/2001 &others 9 with sub section (7) of Section 11. These two sub sections offer independent grounds for eviction and if the landlord is a religious, charitable, educational or other public institutions and the need projected is that the building is required for the purposes of the institution, the apposite eviction ground to be invoked is sub section (7) of Section 11 and Sub section (3) of Section 11 will not have any application. Probably, it is in anticipation of disputes regarding the identity of the petitioners as religious, charitable, educational or other public institutions that the petitioners invoked sub section (3) of Section 11 also. 6. We have scanned the evidence which is available on record. The observation of the learned Appellate Authority that Ext.A1 will not show that the second petitioner is an institution under the first petitioner, we are afraid, is wrong. As already stated, the second petitioner is Thiruhridaya Kanyakalayam and these malayalam words mean “sacred Heart Convent”. It is crystalline clear from Ext.A1 that the Convent is also one of the institutions covered by Ext.A1. In fact, clause 5 of memorandum of Association of the first petitioner deals with 'assets' and the same reads as follows ; CRP.No.3218/2001 &others 10 “All assets which now stands in the name of Green Gardens Institutions shall be the assets of this Association and income shall as far as practicable be used for the purpose of achieving the objects of this Association.” The clause '4' of the memorandum deals with object and it is provided therein that the object for the establishment of the association is to raise social, economic and moral standards of people and that the said object is to be to attained by establishing and running the institutions. Bye laws (1) in Ext.A1 provides for membership and the same is as follows; “All Assissi Sisters who are working in Green Gardens Institutions are members of this Association. Green Gardens Institutions will include, St.Joseph Poor Leprosy Hospital, Sacred Heart General Hospital, S.H. School of Nursing, Little Flower U.P. School, Lilly Nursery School, Assissi St.Francis Generalate, Assissi Convent, Sacred Heart Convent, and other further institution which are coming under the CRP.No.3218/2001 &others 11 object of this Guild.” 7. Ext.A2 is the certificate of Registration issued under Act 12 of 1965 to the first petitioner. Ext.A3 is the certificate issued by the local Tahsildar to the effect that the Poor Leprosy Hospital and other institutions for the Poor, Green Gardens Cherthala, managed by the Assissi Sisters are of provincial importance, wholly charitable and not of commercial or mere social interests, etc. On a cumulative reading of Exts.A1 to A3 we are fairly convinced that the first petitioner Society is a Society formed by Catholic Nuns belonging to the congregation of Assissi Sisters working in Green Garden Institutions which include St.Joseph Poor Leprosy Hospital, Sacred Heart General Hospital, S.H.School of Nursing and Sacred Heart Convent (Thiruhridaya Kanyakalayam). Going by Exts.A1 to A3 and the entire evidence on record in the case including the oral evidence let in from the side of the tenants, there is no room for any doubt regarding the identity of both the petitioners in the rent control petition as religious or charitable and public institutions. As already stated, the need projected in the rent control petitions is the need to establish a consultation clinic-cum- CRP.No.3218/2001 &others 12 dispensary in the Cherthala Town for the achievement of the objects of the first petitioner Society of which the second petitioner Convent is an integral part. It is in evidence that the second petitioner convent is inhabited by catholic nuns who are members of the religious congregation of Assissis Sisters. The need is that the petitioners require the buildings, which are subject mater of the Rent Control Petitions, so that they can conduct a consultation clinic-cum-dispensary for perpetuating memory of Fr.Joseph K.W.Thomas who was the founder of the Green Garden Institutions and used to work as assistant Vicar of the nearby Church. The case of the petitioners falls squarely within sub section (7) of Section 11 of the Act 2 of 1965. In our opinion, the position being so, it was absolutely unnecessary for the petitioners to have simultaneously invoked Section 11(3) also. The Rent Control Appellate Authority has noticed that the various rent chits relied on by the petitioners viz. Exts.A4, A6, A8, A10, A12 and A14, A16 and A18 are all executed in favour of the second petitioner only and the landlord tenant relationship in respect of the buildings is between the second petitioner and the concerned respondents alone. The above view is too technical to CRP.No.3218/2001 &others 13 receive acceptance in the light of Ext.A1 and the irrefutable position that the second petitioner is only a convent and all the inhabitants therein are working in one or other of the Green Garden Institutions mentioned in Ext.A1 and hence members of the first petitioner Society. Therefore, reversing the findings of the Rent Control Appellate Authority that the first revision petitioner has nothing to do with the buildings in question, we hold that both the petitioners are entitled to maintain the rent control petitions invoking eviction ground under sub section (7) of Section 11. 8. Sub section 7 of Section 11 is quoted below. “(7) Where the landlord of a building is a religious, charitable, educational or other public institutions, it may if the building is needed for the purposes of the institution, apply to the rent Control court for an order directing the tenant to put the institution in possession of the building”. Unlike sub section (3), the word 'bona fide' is absent in sub section (7). But, that does not mean that for succeeding in a petition for eviction under sub section(7), it is not necessary to CRP.No.3218/2001 &others 14 establish bona fides of the claim. Sub section (7), like sub section (8) is qualified by sub section (10) of Section 11. It is therefore, clear that in order that a landlord succeeds in a petition for eviction invoking ground under sub section(7) of Section 11, he satisfies the rent control court that his claim is bona fide. 9. Several reasons have been stated by the rent control appellate authority to hold that the bonafides of the claim has not been established. The reasons inter alia are that no document showing that decision has been taken by the executive committee which is managing the affairs of the first petitioner to establish the proposed consultancy clinic – cum- dispensary is produced and that nobody in actual management of the second petitioner convent (which alone according to the rent control appellate authority is the landlord) has given oral evidence in support of the need and that the approved building plan and permit from the local authority regarding the proposed reconstruction has not been produced. All these reasons, we should agree, are fairly good reasons. We also notice that the case spoken to by PW-2, the petitioners' manager, that the proposal is to demolish the CRP.No.3218/2001 &others 15 existing buildings and to reconstruct a new one in its place is not properly founded on pleadings. 10. We are unable to agree with the learned counsel for the revision petitioners when he submits that when eviction is sought under sub section(7) of Section 11, the bona fides of the claim can be established by examining any witness. It is now trite by judgments of Division Bench of this court in Pakran v. Kunhiraman Nambiar (2004) (1) KLT 824) and in K.T.Thomas v. P.Sreedhara Varma (2009 (1) K.L.J.125) that the standards to decide the bona fides of a claim under Section 11(3) and that of a requirement of additional accommodation coming under section 11(8) are different, the former being more rigorous than the later. According to us, the same principle can be invoked to petitions under Section 11 (7) and it can be safely held that the standards for deciding the bona fides of a claim under Section 11(7) are not so rigorous as the standards for deciding the bona fides of a claim under Section 11(3). In fact we are of the considered view that the standards for deciding the bona fides of a claim under Sub Section 7 of Section 11 are even more liberal than the standards for deciding the bona fides CRP.No.3218/2001 &others 16 of claims under sub section 8 of Section 11. This is because unlike claims under sub sections 3 and 8 of Section 11, where a private need of the landlord is being recognised by the court, in a claim under sub section 7 of Section 11, the need which is given recognition and accepted as a ground for evicting the tenant, will have certain elements of interest of the public or a section of the public since the accomplishment of the need will be beneficial not only to the landlord but also to the entire public who are beneficiaries of the activities of the institution . 12. However, it cannot be gainsaid that it is necessary to succeed in a petition under Section 11(7) the landlord institution whether it be a religious or charitable or public institution or religious cum charitable institution, as in the present case, establishes the bona fides of the claim that the building is needed for the purpose of the institution. Bona fides is a state of mind and the state of mind of the landlord to have a need for the building occupied by the tenants for the purposes of the landlord can be manifested only by the person who harbours the need in his mind. Of course, we notice that the first petitioner is an CRP.No.3218/2001 &others 17 institution constituted exclusively by members of the congregation of Assissi Sisters conducting Green Garden Institutions and the second petitioner in whose favour all the rent chits are executed is a convent where these sisters are staying. According to us, whether or not the petitioners have a genuine need to utilize the petition schedule buildings for the purpose of establishing consultation clinic-cum-dispensary can be manifested best only by a person who is atleast a member of the first petitioner society, if not by the Sister General of the congregation of the Assissi Sisters, the President of the Society. We are fortified in our above view by the Judgment of the Supreme Court in Janki Vashdeo v. Indusind Bank (2005 (2) KLT 265 (SC) and by the judgment of this court in Ratheesh v. Jithendra Kumar (2005 (2) KLT 669), Thomas John v. Kochammini Amma (1994 (2) KLT 571), Shaji v. Reghunandanan (1999 (3) KLT SN Page 82) and by our own recent judgment in JCR Trading Pvt.Ltd. v.A.J.Varghese (2009 (1) KLT 963) . 13. There is considerable merit in the view expressed by the learned appellate authority, having regard to the constitution CRP.No.3218/2001 &others 18 of the petitioners 1 and 2 that any decision to establish a consultation clinic – cum – dispensary will be borne out by the records. Ext.A1 provides that the management of the first petitioner society shall be vested in the executive committee of the Society and it is further provided that the executive committee shall assemble atleast once in a month. We are in agreement with the appellate authority that any decision to establish consultation clinic – cum – dispensary after evicting the tenants if genuine, will have the support of a decision by the executive committee of the first petitioner if not, of its general body. It was not disputed that whether it be to have a reconstruction of the existing buildings or to have substantial alterations and remodeling of the existing buildings which is absolutely necessary for accomplishing the purpose of commencing consultation clinic – cum – dispensary in the petition schedule buildings, approved plan and building permit from the Cherthala Municipality the local authority, is necessary. The bona fides of the above need could be demonstrated to a certain extent by producing plan and permit and in this regard we are in agreement with the appellate authority. As already indicated, CRP.No.3218/2001 &others 19 the case pursued in evidence that the buildings in question have to be reconstructed thoroughly and the case submitted before us by the learned counsel for the landlord that it will suffice if the buildings are substantially altered and modified do not have proper roots in pleadings. Absence of pleadings atleast to a limited extent would cause prejudice to the tenants. 14. Our findings that the petitioners are entitled to seek eviction of the respondents on the ground under sub section (7) of Section 11 will be of considerable consequence from the point of view of those tenants who have claimed protection of second proviso to section 11(3). We clarify that sub section (7) of section 11 is qualified only by sub section 10 of section 11 and not by any of the provisos to sub section (3) of Section 11. Once the petitioners establish that the need is bona fide, order of eviction will have to follow. 15. As their last submission, on being informed about our views regarding the decision to be taken in these revisions, the learned counsel for the respondents submitted that there will not be any serious objection in this court granting leave to the revision petitioners to file fresh rent control petitions with proper CRP.No.3218/2001 &others 20 pleadings. The learned counsel for the revision petitioners however would submit that the rent