IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 11TH AUGUST 2010 / 20TH SRAVANA 1932 RCRev..No. 225 of 2010() ------------------------ RCA.15/2007 OF RENT CONTROL APPELLATE AUTHORITY ,KOTTAYAM RCOP.14/2003 of RENT CONTROL COURT, KANJIRAPPALLY .................... REVISION PETITIONER/APPELLANT/RESPONDENT ------------------------------------------------- P.P.CHERIYAN, AGED 79, SON OF PATHROSE, BUSINESS, PUTHENPEDIKAYIL HOUSE, MUNDAKAYAM. BY ADV. SRI.BASIL MATHEW SRI.JOSY ANTONY SRI.K.B.SAJAN RESPONDENT(S)/RESPONDENT/PETITIONER: --------------- V.S.MARIAM BEEVI, WIFE OF LATE MUSTHAFA, SHAMILA, PALARIVATTOM P.O., ERNAKULAM. BY SRI.K.H.HASSAN THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 11/08/2010, ALONG WITH R.C.R.NO.227/2010 & CONNECTED CASES THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ R.C.R.Nos.225,226,227,228,229, 231,232,235 OF 2010 ------------------------ Dated this the 11th day of August, 2010 O R D E R Pius C.Kuriakose, J. All these revision petitions under Section 20 of Act 2 of 1965 are directed against the common judgment of the Rent Control Appellate Authority ordering eviction of the buildings, which are subject matter of the eight rent control petitions, forming part of a larger building situated in a very important area of Mundakkayam town abutting National Highway 220. The common ground, which was invoked by the landlady in all the rent control petitions, was the ground of reconstruction under Section 11 (4)(iv). In some of the cases ground of sub letting and ground of arrears of rent were also invoked. The Rent Control Court on evaluating the evidence, which was adduced by the parties, ordered eviction in all the eight cases on the ground of reconstruction under Section 11(4)(iv). In RCP No. 9/2003, R.C.R.Nos.225/2010 & others 2 which corresponds to RCR No.231/2010, eviction was ordered on the ground of arrears of rent and sub letting also. In RCP No.9/2003 it was found that the tenant of the building is one Mr.Yoosuf, who was the first respondent in the RCP, and that the second respondent Bhaskaran is an unauthorised sub lessee. Against the order of eviction passed in that case, the tenant Yoosuf did not prefer any appeal. Mr.Bhaskaran, the alleged sub lessee, preferred an appeal as did the tenants in the other seven cases. The Appellate Authority made a thorough reappraisal of the entire evidence and would concur with all the conclusions of the Rent Control Court in the common judgment which was impugned in the appeals. The Appellate Authority dismissed all the RCAs, thus ordered eviction in all the cases other than RCP No.9/2003 under Section 11(4)(iv) and confirmed the order of eviction passed on the ground of arrears of rent, sub letting and reconstruction in RCR No.221/2010 pertaining to RCP No.9/2003. 2. It is the above common judgment which is impugned in these revision petitions filed before us. RCR No.231/2010 is filed by Bhaskaran, the second respondent in the RCP No.9/2003, who has been concurrently found to be a sub lessee. R.C.R.Nos.225/2010 & others 3 3. Various grounds are raised in these revision petitions assailing the judgment of the Appellate Authority. It is urged that the statutory ingredients for establishing eviction ground under Section 11(4)(iv) were not established in these cases and that the judgment of the Appellate Authority is vitiated by illegality, irregularity or impropriety as envisaged by Section 20. In RCR No.231/2010 the order of eviction passed under Section 11(4)(i) and 11(2)(b) is also assailed. 4. We have heard the submissions of Sri.Basil Mathew, learned counsel for the revision petitioners and those of Sri.K.A.Hassan, who took notice on behalf of the respondent/landlady as directed by us. 5. Mr.Basil Mathew would address strenuous arguments before us based on the grounds raised in the various memoranda of revisions. As regards RCR No.231/2010, the learned counsel drew our attention to Exts.B7 to B9 and submitted that those are three rent receipts issued on behalf of the landlady to Bhaskaran, the alleged sub lessee. According to Mr.Basil Mathew, the defence of Bhaskaran in the RCPs was that Yoosuf, the original tenant, vacated the building and thereafter the landlady let out R.C.R.Nos.225/2010 & others 4 the building directly to Bhaskaran and that Bhaskaran attorned to the landlady by paying rent directly to her. Mr.Basil Mathew argued that the above defence stands substantiated by Exts.B7 to B9. Bhaskaran has been residing in the building, which is subject matter of that case since March 1998 without any demur from the side of the landlady. The learned counsel requested that the finding that Bhaksaran is liable to be evicted on the ground of sub letting be vacated. As regards the eviction order under Section 11(2)(b) in that case, it was submitted that it will suffice if reasonable time be granted for getting that order vacated by filing necessary application under Section 11 (2)(c). The ground of reconstruction upheld in all these cases came up for very severe attack at the hands of Sri. Basil Mathew. The learned counsel submitted that the rent control petitions lacks in essential pleadings constituting the statutory ingredients for establishing eviction ground under Section 11 (4)(iv). The learned counsel submitted that the landlady is permanently residing at Palarivattom and her intention is to dispose of the petition schedule building once she got vacant possession. Mr.Basil Mathew further submitted that the Buildings Rules, which R.C.R.Nos.225/2010 & others 5 were not applicable to Mandakkayam Panchayat at the time when the RCPs were instituted, have been made applicable with effect from 26/11/2007 and therefore any building construction has to be in conformity with the Building Rules. The learned counsel pointed out that though plan and estimate has been produced regarding the proposed reconstruction, the building permit, which is a statutory pre requisite for commencing any construction, is yet to be produced. In the absence of valid building permit from the local Authority, the order of eviction passed under Section 11 (4)(iv) cannot be sustained. Mr.Basil then submitted that the shape and size of the site, on which the petition schedule buildings presently exist, is such that it will be impossible for the landlady to construct a new building in such a manner as to enable the tenants to have their right of induction into the reconstructed building. The learned counsel submitted that the plan presently produced does not earmark the areas, which are intended for the evicted tenants once the reconstruction is over. Lastly, Mr.Basil submitted that as the site of the proposed reconstruction abuts National Highway 220, it is absolutely necessary that No Objection Certificate is issued by the R.C.R.Nos.225/2010 & others 6 competent authority under the National Highways Act before the reconstruction commences. Such No Objection Certificate is not produced though the landlady in her evidence as PW1 claimed that she is having such a certificate with her. 6. All the submissions of Mr.Basil Mathew were very stiffly opposed by Mr.K.A.Hassan, learned counsel for the landlady. Mr.Hassan remind us of the contours of the jurisdiction in which we are presently sitting. The learned counsel submitted that in the present jurisdiction we are not expected to make a reappraisal of the evidence for the purpose of substituting conclusions on facts arrived by the final fact finding authority, the Rent Control Appellate Authority, especially when the same is in concurrence with the findings entered by the Rent Control Court. The learned counsel drew our attention to the pleadings and submitted that the argument that the RCPs lacks in material pleadings in the context of ground under Section 11 (4)(iv) has no merit. No prejudice, according to him, has been occasioned to any of the tenants on account of any defect in the pleadings raised by the landlady. Mr.Hassan submitted that landlady has no objection in this Court incorporating any safeguards in the R.C.R.Nos.225/2010 & others 7 judgment for ensuring that reconstruction proposal presently mooted becomes reality. The learned counsel submitted that the plan for the proposed reconstruction as well as the estimate pertaining to the same were produced before the Trial Court with notice to the tenants and they were marked as Ext.A6. Ext.A6 plan, according to him, will show that in the new building after reconstruction every tenant (all revision petitioners other than the revision petitioner in RCR No.231/2010) will be alloted area with more or less the same facilities as they are presently enjoying in the petition schedule buildings. Mr.Hassan would resist the submissions of Mr.Basil Mathew rendered in the context of ground of sub lease in RCR No.231/2010. He submitted that Bhaskaran, who has examined as RW 4, stated in his evidence that he has a direct rent chit from the landlady in his favour. Notwithstanding such a statement, he never produced the rent chit. Ext.A25 is the rent chit executed by Yoosuf in favour of the landlady . As regards Exts.B7 to B9, the learned counsel submitted that Ext.B8 contains corrections and at the most will show that Baskaran remitted the rent for and on behalf of the real tenant Yoosuf. R.C.R.Nos.225/2010 & others 8 7. We have considered the rival submissions addressed at the Bar. We could scan the pleadings as copies of the rent control petitions and objections were supplied to us by the learned counsel. We do not find any merit in the submissions of Mr.Basil Mathew that the rent control petitions lack in pleadings regarding the statutory ingredients necessary for establishing ground under Section 11 (4)(iv). The only statutory ingredient, which is not pleaded, is regarding the availability of plan and building permit with the landlady. It is conceded that at the time when the RCPs were instituted, building permit was not required. We find that the RCPs contains pleadings regarding the availability of plan and estimate and they have been produced also along with the RCPs. A reading of the rent control petitions together with the statement of objections filed by the various tenants raising identical contentions, will show that no prejudice whatsoever has been occasioned to any of the revision petitioners by any insufficiency in the pleadings. We have scanned the judgment of the Rent Control Appellate Authority. We find that the finding entered therein that the building in question needs reconstruction and that the landlady has the R.C.R.Nos.225/2010 & others 9 ability to carry out the reconstruction has been entered by the Appellate Authority on reappreciating the evidence which was adduced by the parties. The advocate commissioner, who was appointed by the Rent Control Court for conducting local inspection, reported that the building is an old and old fashioned one situated in a very important locality of Mundakkayam town. It was reported that the building, having regard to its old age and physical and social conditions, needs reconstruction. It was found by the Appellate Authority that the landlady was successful in proving that she has wherewithal to carry out the reconstruction. It was found that Exts.A6 plan and estimate will show that once the reconstruction is completed as proposed, it will be possible for the landlady to reinduct the tenants, who are evicted, into portions of the newly constructed buildings with more or less the same area as they are presently enjoying. It was found again, on appreciating the evidence, that the proposal of reconstruction will be profitable from the landlady's point of view. It was noticed that Building Rules have been made applicable to the area during the pendency of the proceedings and it has been incorporated in the judgment that actual eviction R.C.R.Nos.225/2010 & others 10 should be after ensuring that building permit is issued to the landlady by the local authority. It was also noticed that the Assistant Executive Engineer of the National Highways Authority has also issued their No Objection Certificate in the matter of reconstruction proposal. As all these findings are founded on evidence available on record, we are of the view that there is no illegality, irregularity or impropriety as envisaged by Section 20 of Act 2 of 1965 vitiating the order of eviction concurrently passed under Section 11(4)(iv). The same is the position as regards the order of eviction passed against the revision petitioner in RCR No.231/2010. An agreement dated 31/10/1997 executed by Mr.Yoosuf in favour of the revision petitioner Bhaskaran is relied on by Bhaskaran to contend that Bhaskaran is a tenant in his own right and not an unauthroised sub lessee. The original of that agreement was placed before us by Sri.Basil Mathew. According to us, the above agreement supports the case of the landlady more than that of the tenant and the sub tenant. What is stated therein is that a sum of Rs.1,40,000/- is paid to Yoosuf by Bhaskaran and that within two months of the date of the agreement Yoosuf will ensure that the landlady R.C.R.Nos.225/2010 & others 11 executes rent deed directly in favour of Bhaskaran. Evidently, no such rent deed is executed and much less produced before the Court below. It is only Exhibits B7 to B9 that are produced. Exts.B7 to B9, in our view, at best shows that on three occasions Bhaskaran paid rent in respect of the building. Payments against Exts.B7 to B9 and any other payments can only be payment on behalf of Yoosuf, who is the tenant as per Ext.A25. In the absence of any document, which will clearly establish that the landlady has recognised Bhaskaran as her tenant, the jural status of Baskaran in the building will continue to be that of sub lessee or unauthroised transferee. The finding that Baskaran is the sub lessee and that the sub lease is unauthroised has been entered by the statutory authorities on correctly appreciating the evidence that came on record. We do not find any warrant for interfering with that finding within the contours of our jurisdiction under Section 20. The apprehensions voiced by the learned counsel for the revision petitioners, that the landlady's intention is to sell of the petition schedule building once vacant possession is obtained, are not founded on any material on record. However, in view of the apprehensions voiced before us R.C.R.Nos.225/2010 & others 12 by the learned counsel, we are incorporating appropriate safeguards to which there is no objection from the side of the landlady. 8. The result of the above discussion is as follows; i). All the revision petitions fail and they are dismissed. ii). The Execution Court is directed to order and effect delivery of the petition schedule building in favour of the landlady only after ensuring that the Mundakayam Panchyat has issued a building permit enabling the landlady to carry out the reconstruction in terms of Ext.A6 plan. iii). The landlady is restrained from disposing of the petition schedule buildings, by sale as exists now as well as the vacant land, once the buildings are demolished and removed, for a period of three years from the date of getting vacant possession of the buildings. iv). We reiterate the directions already issued by the statutory authorities regarding reinduction of the tenants (the petitioners in the revision petitions except the petitioner in RCR No.231/2010). v). The revision petitioners are given six months time from R.C.R.Nos.225/2010 & others 13 today to surrender the premises on condition that each of them files an affidavit before the Rent Control Court or the Execution Court, as the case may be, within one month from today undertaking to give peaceful surrender of the buildings to the respondent/landlady on or before 15/2/2011 and undertaking further that arrears of rent, if any, will be discharged within one month and occupational charges at the current rent rate will also be paid till such time as surrender is made. vi). The respondent/landlady shall commence and complete the reconstruction within one year of getting actual possession of the vacant possession of the buildings. vii). The tenant in RCR No.231/2010 is granted one month's time to file petition under Section 12(c). The parties will suffer their respective costs. PIUS C.KURIAKOSE,JUDGE C.K.ABDUL REHIM , JUDGE dpk