IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 25TH JANUARY 2011 / 5TH MAGHA 1932 RCRev..No. 136 of 2008() ------------------------ RCA.15/2006 OF RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE RCP.28/2005 OF RENT CONTROL COURT, ,KOZHIKODE-I .................... REVISION PETITIONER/APPELLANT/RESPONDENT. -------------------------------------------------------------------------------- THACHARAMBIL MANI, 13/507, FUNRNITURE BUSINESS, KALLI ROAD, CALICUT NAGARAM DESOM KOZHIKODE TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.B.G.BHASKAR SRI.BIJU ABRAHAM RESPONDENT(S)/RESPONDENTS/RESPONDENTS: ------------------------------------------------------------------ 1. A.P.ABOOBACKER SIDDIQUE , S/O. LATE AYAPPALLI KUTTIASSAN HAJI, AYAPPALLI HOUSE, KASBA AMSOM, KOZHIKODE KOZHIKODE DISTRICT. 2. A.P.ABDUL LATHEEF, S/O. LATE AYAPPALLI KUTTIASSAN HAJI, AYAPPALLI HOUSE, KASBA AMSOM, KOZHIKODE KOZHIKODE DISTRICT. 3. A.P.ABDUL SALEEM , S/O. LATE AYAPPALLI KUTTIASSAN HAJI, AYAPPALLI HOUSE, KASBA AMSOM, KOZHIKODE KOZHIKODE DISTRICT. 4. A.P. ABDUL RAHEEM, S/O. LATE AYAPPALLI KUTTIASSAN HAJI, AYAPPALLI HOUSE, KASBA AMSOM, KOZHIKODE KOZHIKODE DISTRICT. 5. A.P.MOHAMMED YOONUS, S/O. LATE AYAPPALLI KUTTIASSAN HAJI, AYAPPALLI HOUSE, KASBA AMSOM, KOZHIKODE KOZHIKODE DISTRICT. 6. A.P.ANWAR SADATH, S/O. LATE AYAPPALLI KUTTIASSAN HAJI, AYAPPALLI HOUSE, KASBA AMSOM, KOZHIKODE KOZHIKODE DISTRICT. 7. A.P.MOHAMMED HARISH, S/O. LATE AYAPPALLI KUTTIASSAN HAJI, AYAPPALLI HOUSE, KASBA AMSOM, KOZHIKODE KOZHIKODE DISTRICT. 8. A.P.HASEENA, S/O. LATE AYAPPALLI KUTTIASSAN HAJI, AYAPPALLI HOUSE, KASBA AMSOM, KOZHIKODE KOZHIKODE DISTRICT. 9. A.P.FAHAD, S/O. LATE AYAPPALLI KUTTIASSAN HAJI, AYAPPALLI HOUSE, KASBA AMSOM, KOZHIKODE KOZHIKODE DISTRICT. 10. THOROKKAM VEETTIL BICHAMI, WIDOW OF AYAPPALLI KUTTIASSAN HAJI, AYAPPALLI HOUSE, KASBA AMSOM, KOZHIKODE KOZHIKODE DISTRICT. ADV. SRI.K.JAYAKUMAR FOR R1-3,5,7-9 SRI.P.B.KRISHNAN FOR R1-3,5,7-9 SMT.GEETHA P.MENON FOR R1-3,5,7-9 SRI.P.M.NEELAKANDAN FOR R1-3,5,7-9 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 25/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: O R D E R NO REPRESENTATION FOR THE REVISION PETITIONER TODAY ALSO. RCR ISDISMISSED FOR DEFAULT. IA.1288/08, 1792/08 DISMISSED. SD/- PIUS C.KURIAKOSE, JUDGE. 25-1-2011 SD/- N..K.BALAKRISHNAN, JUDGE. (TRUE COPY) PS TO JUDGE. PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. ---------------------------------------------------- R.C.R.No.136 of 2008 ---------------------------------------------------- Dated this the 15th day of March, 2011 Order Pius C.Kuriakose, J. The tenant has filed this revision challenging the order of eviction concurrently passed under Section 11(3) of Act 12 of 1965. The petition schedule building is the southern most room situated on the western side of Kallai road and very close to the National Highway. There are three other rooms adjacent to it. One room is stated to be in the possession of another tenant. Two rooms are stated to be in the possession of the landlords. The respondent was stated to have come into possession of this building and the nearby building as per document of 1985. There is a five storied building situated just behind the petition schedule building. The landlord contended that the petition schedule building and the adjacent rooms are to be pulled down so as to provide access to the five storied building situated behind it and also to use it as parking space. It is stated that the R.C.P filed in respect of the other rooms was already allowed and the matter is 2 stated to be pending in appeal. The landlord contends that in the two rooms situated adjacent to the petition schedule building they are conducting business in aluminum and steel vessels under the name and style of 'Calicut Metal Mart'. The total plinth area of the five storied building is stated to be 10,000 sq. feet. It is alleged that the building is not having frontage or opening to the National Highway due to the existence of the old building including the petition schedule building. The tenant resisted the petition contending that the ground floor of the building was actually intended to be and constructed as parking space and that there is access to the ground floor of the building from the main road through the vacant space available. The tenant contended that the five storied building would have been permitted to be constructed only if sufficient parking space was made available and evidently the ground floor was set apart for that purpose and hence the petition schedule building is not necessary to be pulled down so as to have access to that building from the main road. 2. After analysing the evidence adduced by the parties, the court below found that the need urged by the landlord is 3 bonafide. It was also found that the tenant is not entitled to the protection of the second proviso under Section 11(3). The learned Appellate Authority, on reappraisal of the evidence found that the need projected by the landlord is bonafide and hence confirmed the order of eviction. 3. Mr.B.G.Bhaskar, learned counsel for the revision petitioner would submit that on going through the pleadings in the R.C.P it is very clear that the petition schedule building was sought to be evicted and demolished only for the purpose of providing parking space. The construction of the five storied building was in such a way that the ground floor was intended only to be used as parking space and as such it cannot be said that the petition schedule building is to be pulled down. It was also contended that at present sufficient space has been provided for lorries and other vehicles to be taken from the main road to the ground floor of the five storied building and on that ground also it cannot be said that the landlord bonafide needs the petition schedule building for providing access to the ground floor of the five storied building. 4. It was further submitted that since parking space must 4 have provided as per plan and since the plan and permit could have been issued and granted by the local authority only on satisfying the conditions as laid down in the building rules, the landlord is precluded from contending that there is no parking space for the said building and if that is so, the claim for eviction projecting that need cannot be sustained at all. 5. Mr.P.B.Krishnan, learned counsel for the landlord would submit that at present for want of access to the ground floor of the building, the area occupied by them as Calicut Metal Mart itself is used for access and unless and until the adjacent buildings are got evicted, the entire old structure cannot be pulled down, for better access to the five storied building mentioned above. Learned counsel has also shown to us a photograph which would show the petition schedule building and the adjacent room, the roof of which are put up with asbestos sheets. Of course, the claim is not made for reconstruction under Section 11(4)(iv). Learned counsel would submit that on going through the petition, it can be seen that the need was for having a better passage to the five storied building from the main road and for that purpose the Calicut Metal Mart, the area presently 5 occupied by the landlord also has to be pulled down and once that building is pulled down, the adjacent room cannot actually remain there without being affected by the demolition of the other portion. 6. It was vehemently argued by Mr.B.G.Bhaskar that when application was filed for summoning the records from the Calicut Corporation including the plan approved by that authority for construction of the building, the Corporation expressed their inability to produce the same stating that the construction was in 1973 and the records relating to the same are not available in the office. Learned counsel submits that since the present landlords are having possession over the five storied building, it was the duty of the landlords to produce the records. 7. Mr.Krishnan submitted that since the Corporation authorities expressed their inability to produce the documents, it is too late in the day to contend that the landlords should be non- suited on that ground, if it is otherwise found that the need projected by them is bonafide. It was also submitted by Mr.Krishnan since the statutory authorities have concurrently held that the need projected by the landlords are bonafide after 6 evaluating the evidence in entirety, this court should be slow in reappreciating the evidence to substitute its conclusions. 8. We have gone through the order of the Rent Control Court and scanned the judgment of the Appellate Authority. The contention advanced by the learned counsel for the revision petitioner that the need now projected is actually against the need set up in the petition is not fully correct. As stated earlier, the need was to provide access and also for providing parking space. The lie and position of the five storied building behind the old out model structure gives a clear picture that the aforesaid structure is to be pulled down so as to provide access and vehicle parking area. However, we notice that the tenant (revision petitioner) can be permitted to surrender vacant possession of the building only after landlords demolish the portion in their possession -Calicut Metal Mart. We also feel that the execution court will explore the possibility of settlement either by allotting a room in the five storied building to the revision petitioner or by directing payment of an amount for enabling him to shift his business. 9. In the result, the R.C.R. is dismissed. Eviction order 7 passed by the statutory authorities is confirmed. The tenant- revision petitioner is granted nine months time to vacate the petition schedule building. The execution court will explore the possibility of a settlement between the parties before ordering delivery of petition schedule building to the landlord as stated earlier. The parties are directed to enter appearance before the execution court on 25th May, 2011. PIUS C.KURIAKOSE, JUDGE. N.K.BALAKRISHNAN, JUDGE. srd 8 9 10