IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 23RD NOVEMBER 2010 / 2ND AGRAHAYANA 1932 RCRev..No. 362 of 2010() ------------------------ RCA.24/2006 of RENT CONTROL APPELLATE AUTHROITY, THALASSERY RCP.19/2003 of RENT CONTROL COURT.,KANNUR .................... REVISION PETITIONERS/APPELLANTS/RESPONDENTS --------------------------------------------------------------- 1. THANKAMANI SATHYAN, W/O.LATE SATHYAN, RESIDING AT BUILDING NO.KR 417, KANATHUR WARD, KANNUR-1. 2. RAMAKRISHNAN, S/O.LATE SANKUNNI, RESIDING AT BUILDING NO.KR 417, KANATHUR WARD, KANNUR-1. 3. SOUMINI, D/O.LATE SANKUNNI, RESIDING AT BUILDING NO.KR 417, KANATHUR WARD, KANNUR-1. BY ADV. SRI.V.PREMCHAND RESPONDENT(S): RESPONDENTS/PETITIONERS -------------------------------------- 1. PARAPPURATH MUSTHAFA, S/O.EBRAHIMKUNHI, MUNDAYAD, NEAR SUB STATION, P.O.MUNDAYAD, KANNUR-6. 2. PARAPPURATH KHALID, S/O.EBRAHIMKUNHI, MUNDAYAD, NEAR SUB STATION, P.O.MUNDAYAD, KANNUR-6. 3. RAFEEQUE PARAPPURATH, S/O.EBRAHIMKUNHI, MUNDAYAD, NEAR SUB STATION, P.O.MUNDAYAD, KANNUR-6. (RESPONDENTS NO.1 & 2 ARE REPRESENTED THROUGH THIER POWER OF ATTORNEY HOLDER THE 3RD RESPONDENT P.RAFEEQUE) THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 23/11/2010, ALONG WITH R.C.R.Nos.363/2010 & CONNECTED CASE THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ. ------------------------ R.C.R.Nos.362, 363 & 364 OF 2010 ------------------------ Dated this the 23rd day of November, 2010 O R D E R Pius C.Kuriakose, J. Under challenge in all these revisions is the judgment of the rent control appellate authority confirming the common order passed by the rent control court under Section 11(4)(iv) of Act 2 of 1965. In R.C.R. No.362/2010, which corresponds to RCP No.15/2005 and RCA No.26/2006, the eviction order was passed under Section 11(2)(b) also. As the eviction order passed under Section 11(2)(b) is tentative and is liable to be vacated by making requisite deposits under Section 11(2)(c), we are not at all impressed by the submissions of the learned counsel for the petitioners against the eviction order under section 11(2)(b) passed in that case. 2. The grounds prominently raised in all these revisions are directed against the eviction order concurrently passed by the Rent Control Court and the appellate authority under Section RCR.Nos.362/2010 & others 2 11(4)(iv). Sri.V.Premchand, learned counsel for the revision petitioners submitted that the need for reconstruction, which was pleaded by the landlords and has now been upheld by the rent control court and the appellate authority, is not a bona fide one. The learned counsel highlighted in this context that the landlords who are brothers had, in the year 2000, issued Ext.B1 notice to the tenants invoking the only ground of bona fide need for own occupation under sub section (3) of section 11. But, in the present rent control petitions filed after three years the ground under Section 11(4)(iv) is invoked. This shift in the stand of the landlords is indicative of mala fides. Mr.Premchand would give more thrust to the ground raised that the landlords have not proved their financial ability to carry out the proposed reconstruction. According to the learned counsel, no documentary evidence has been adduced by the landlords to show that the landlords are having cash necessary for carrying out the proposed reconstruction at least in part. The learned counsel submitted that, in the total absence of documentary evidence regarding the financial ability of the landlords to carry out the proposal, the need projected by the landlords ought to RCR.Nos.362/2010 & others 3 have been found to be not a bona fide one. 3. We have anxiously considered the submissions of Mr.Premchand. We have gone through the order of the rent control court and we have scanned the judgment of the appellate authority, which under the statutory scheme, is the final court on facts. In order that the eviction ground under Section 11(4)(iv) is established in a rent control court, it is necessary that the following statutory pre requisites exist in the case; i). The condition of the building warrants reconstruction. ii). The landlord has the requisite plan and licence from the local authority concerned for carrying out the reconstruction. Iii). The landlord has the ability to carry out the proposal. iv). The proposal should not made as a pretext for eviction. 4. It is trite by decisions of this court that unlike the bona fides of a claim under sub section (3) of Section 11, the bona fides of a claim under Section 11(4)(iv) is something which can RCR.Nos.362/2010 & others 4 be gathered from circumstances such as the physical and social conditions of the building, the availability of a plan and licence for the proposed reconstruction with the landlord, the profitability of the proposal from the landlord's view point and the ability of the landlord to carry out the reconstruction. A reading of the judgment of the appellate authority will show that there was clinching evidence before the rent control court and the appellate authority to conclude that the physical and social conditions of the building is such that the building requires reconstruction. Availability of a plan and licence issued by the local authority was not seriously disputed even. That the proposal will be profitable from the landlords' point of view was also not challenged. The only question, which survives now, is the challenge regarding the landlords' claim in the rent control petition that they have financial ability to implement the proposal for reconstruction. We went through the pleadings raised by the parties. What we find is that there is only vague denial of the landlords' claim that they have the financial ability to carry out the proposal. The only question, which is seen asked in cross examination to one of the landlords, who was RCR.Nos.362/2010 & others 5 examined as PW1, was that whether he has produced documents which will show that the landlords are presently having cash to carry out the reconstruction. The landlords' evidence regarding the ability was that they have very valuable properties in Kannur Municipal Corporation, that one of them is in business and the others are gainfully employed in Middle East countries and also that they will not have any difficulty in raising loan from some local banks. As against such evidence that the suggestion in cross examination was only regarding the availability of ready cash. It is trite that the landlords who are seeking eviction on the ground of reconstruction are not expected to jingle coins before the statutory authorities under Act 2 of 1965. The ability, as envisaged by Section 11(4)(iv), does not mean availability of actual cash. It only means the capacity to raise funds for the purpose of implementing the proposal. According to us, the findings concurrently entered by the two statutory authorities that the landlords have such capacity is founded on evidence available in the case. In short, we do not find any illegality, irregularity or impropriety as envisaged under Section 20 about RCR.Nos.362/2010 & others 6 the judgment of the appellate authority. In this context we notice that no convincing evidence has been adduced on the side of the tenants to show that the proposal has been made by the landlords as a mere pretext for eviction. Oblique motive attributed to the landlords is that the landlords want to get higher rent. In fact the landlords, though not in so many words, pleaded in the rent control petition itself that the proposal will be more profitable from their point of view in the sense that they will be able to recover fair rent from the occupants of the new buildings. Reconstruction proposal envisaged on considerations of profitability from the landlords' point of view, cannot be said to be actuated by mala fides when the revision petitioners/tenants are going to be given first option to be inducted into the newly constructed building. We also notice in this context that if after evicting the revision petitioners, the landlords do not carry out the reconstruction or after completing the reconstruction, the landlords hesitate to induct the tenants, the 3rd proviso to section 11(4)(iv) will provide very effective remedies to the revision petitioners. RCR.Nos.362/2010 & others 7 5. The result of the above discussion is therefore as follows; i). The Revision Petitions fail and will stand dismissed. ii). It is open to the revision petitioners in RCR No.362/2010 to make requisite deposits and get the eviction order passed against them under Section 11(2)(b) vacated within a period of 30 days from today. iii). The landlords shall complete the reconstruction of the proposed new building within nine months of getting the actual possession. iv). Considering the request of Mr.Premchand for time, we direct the execution court to keep in abeyance proceedings for delivery for a period of six months from today subject to the following conditions; The revision petitioners shall file an affidavit before the Execution Court undertaking to give peaceful surrender of the petition schedule building in their possession to the landlords within six months from today and undertaking further RCR.Nos.362/2010 & others 8 that entire arrears of rent, if any, due as on date will be discharged and that they will continue to pay occupational charges at the current rent rate till actual surrender of the petition schedule building is made. The revision petitioners will get benefit of time granted above only if they file the affidavit on time and honours all the undertakings in the affidavit. PIUS C.KURIAKOSE,JUDGE P.S.GOPINATHAN, JUDGE dpk