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 13TH MARCH 2009 / 22ND PHALGUNA 1930 RCRev..No. 524 of 2005() ------------------------ RCA.17/2003 of RENT CONTROL APPELLATE AUTHORITY ( DISTRICT COURT), THRISSUR RCP.21/2001 of RENT CONTROL COURT ( MUNSIFF COURT),IRINJALAKUDA .................... PETITIONER/RESPONDENT/COUNTER PETITIONER ------------------------------------------------------------ DAVIS AGED 41, ELANKUNNAPUZHA KUNNATHUPARAMBIL JOSEPH,VENNOOR DESOM, ALATHUR VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENT(S): RESPONDENT/APPELLANT/PETITIONER ---------------------------------------------- DEVASSY, S/O.CHENGINIMATTOM VAREETH, CHALAKKUDY DESOM,KIZHAKKE CHALAKKUDY VILLAGE, MAUKUNDAPURAM TALUK. ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE FOR R SRI.K.JAYAKUMAR FOR R SRI.P.B.KRISHNAN FOR R THIS RENT CONTROL REVISION HAVING BEEN FINALY HEARD ON 13/03/2009, ALONG WITH RCR NO. 579 OF 2005 ETC. THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ. ----------------------------------------------- RCR. Nos. 524, 579, 580, 581, 586 & 589 0f 2005 & 18 & 236 of 2006 -------------------------------------------------------------- Dated this the 13th day of March, 2009 O R D E R Pius C.Kuriakose, J. All these revision petitions under section 20 of Act 2 of 1965 are filed by tenants in occupation of different portions of a very old double storeyed building situated in a very important area of the Chalakudy Municipal Town abutting the market road in Chalakudy, admittedly the most important commercial thoroughfare in that town. The case commonly raised by the landlord before the Rent Control Court was that the larger building of which the buildings which are subject matter of the various rent control petitions form parts, is about 100 years old, that due to old age some portions of the larger building have fallen down and in some portions cracks have appeared and that the building has become dilapidated to a point beyond repairs, the dilapidation of the building is to the extent of posing RCR. N0s. 524/05 etc. -2- danger to persons coming to the building and that the building remains as an eye sore in the midst of many other new buildings which have come up in the locality. The landlord is conducting timber business for the past more than 50 years and his son Joseph is helping him in the above business for the past more than 25 years. The landlord and his son are carrying on business in the nearby premises, landlord's son Joseph is a dependent on the landlord, the landlord wants to demolish the entire building and construct a new building so that the same can be utilised for commencing business in furniture. The need is to start a furniture show room as well as a unit for making furniture. Demolition of the building is necessary, so that the proposed new building will have direct frontage of the market road. Neither the landlord nor his son Joseph are having ownership or possession of any other premises for accomplishing the avowed need. In the rent control RCR. N0s. 524/05 etc. -3- petitions, the landlord has referred to earlier proceedings initiated by him and explains why he has become obliged to initiate the present proceedings. In fact the landlord instituted as many as 10 rent control petitions, viz., RCP. Nos.21, 22, 23, 24, 25, 26, 27, 33, 34 and 35 of 2001 and objections raising similar contentions were raised by the tenants in all these rent control petitions. 2. Inter alia it was contended that rent control petitions are filed consecutively by the landlord for harassing the tenants and that, the rent control petitions are barred by principles of res judicata. It was contended that the building is not in a dilapidated condition. In some of the cases it was contended that the tenant had approached the Accommodation Controller seeking direction to the landlord to carry out periodical maintenance and repairs to the building. The tenants denied the contention of the landlord that his son Joseph is his dependent. It was contended RCR. N0s. 524/05 etc. -4- that it is his son who is conducting timber business and that the landlord who is an octogenarian is is actually dependent on his son. Some of the tenants disputed the financial ability of the landlord petitioner to carry out the reconstruction. It was contended that the landlord is in possession of sufficient land facing the main road in the National Highway at Chalakudy and some of the tenants contended that they are entitled to the protection of the second proviso to subsection (3) of section 11. 3. All the rent control petitions were ordered to be tried jointly and at trial the evidence on the side of the landlord consisted of the oral evidence of PW-1, the dependent son of the landlord for whom eviction was sought for and that another witness PW-2 and Exts.A1 to A18(e). On the side of the tenants the same consisted of RW-1 Gangadharan who was the respondent in RCP. No.34/01 corresponding to RCA. No. 24/2003 and also Exts.B1 to B6. The court exhibits RCR. N0s. 524/05 etc. -5- consisted of Exts.C1 and C2 commission reports submitted by Advocate B.Bindu and Ext.C1(a) plan submitted by her. The Rent Control Court on an evaluation of the evidence would conclude mainly on the basis of the Advocate Commissioner's reports and Ext.A18 photos taken by PW-2 photographer that the present existence of the building is in a most pathetic and dilapidated condition. That court however would express surprise in noticing that despite such condition the landlord is not ready for carrying out repairs or renovation to the building. However, examining the important question as to whether the need projected under subsection (3) of section 11 is bona fide that court would observe that the Rent Control Act is a beneficial legislation for the unprotected against the whims and fancies of landlords and that the need shall be a bona fide one involving element of necessity and not an irrational desire. While reiterating that going by the evidence the RCR. N0s. 524/05 etc. -6- condition of the building is pathetic the Rent Control Court would hold that the condition is attributable to the latches on the part of the landlord himself. The court would highlight that in earlier proceedings initiated against the tenants eviction was sought on the ground of requirement of reconstruction falling under clause (iv) of sub-section (4) of section 11 also and that the said need is given up in the present proceedings stating the reason that the business of construction of buildings and let out the same is no longer profitable. This reason, according to the Rent Control Court is in conflict with PW-1's further statement in evidence that the building is situated in a commercially important area. The Rent Control Court would also notice that the plan and permit issued by the local authority are in currency despite evidence to the contrary by PW-1. Ultimately that court concluded that the landlord had failed in proving the bona fides of the need and held that the unsuccessful prosecution RCR. N0s. 524/05 etc. -7- of the earlier rent control petitions and the premature withdrawal of some of the petitions will show the malafides on the part of the landlord. Coming to the question whether PW-1 is a dependent on the landlord,the Rent Control Court would answer that question against the landlord observing that the landlord is an octogenarian who is admittedly being helped by PW-1. That court would conclude that it cannot be stated that PW-1 is dependent on the petitioner thereby virtually accepting the tenant's case that it is the landlord who is dependent on PW-1. To the question as to whether the rent control petitions were liable to fail in view of the first proviso to section 11(3), Rent Control Court does not answer this question specifically but instead noticed that the landlord is in possession of two vacant rooms and observes that under such a situation the landlord has the burden to show special reasons as envisaged by the first proviso to section 11(3). Coming to the question whether the tenant is RCR. N0s. 524/05 etc. -8- entitled to the protection of second proviso to section 11(3) that court would answer that question in favour of the tenant holding that the landlord has not proved that the income derived by the tenants from the the activities carried on by them in the rooms respectively possessed by them is not their main source of livelihood and that several buildings are available for the tenant in the locality on rent. Thus on the basis of these findings the Rent Control Court would dismiss all the rent control petitions. 4. The Rent Control Appellate Authority would make a thorough reappraisal of the pleadings and evidence in the case and reversing the findings of the Rent Control Court would order eviction against all the tenants under sub- section(3) of section 11. It was noticed that need for own occupation of the new building to be constructed after demolishing the existing buildings possessed by the tenants was a need admissible under sub-section (3) of section 11 RCR. N0s. 524/05 etc. -9- and in this context the learned Appellate Authority relied on the judgment of this court in 1965 (1) KLT 323. That authority noticed that the dismissal of rent control petitions filed earlier by the landlord were on technical reasons or without enquiring into the merits. The authority also noticed that it was in evidence that the landlord, an octogenarian was in timber business for over decades and that his son PW-1 was assisting him. According to the Appellate Authority, there was nothing unnatural in such a landlord allowing his son PW-1 to conduct furniture business in a new building to be constructed adjacent to the already existing timber yard belonging to the landlord and managed by the landlord with the assistance of PW-1 himself. That authority rightly noticed that there were special reasons as envisaged by the first proviso to sub-section (3) of section 11 for the landlord not occupying the one vacant room he was already having possession for the avowed purpose. The RCR. N0s. 524/05 etc. -10- Appellate Authority would analyse the evidence adduced by the parties in the context of second proviso to section 11(3) threadbare and conclude that the tenants had failed in establishing that other suitable buildings are not available for the tenants to shift their present business. In the light of that finding that authority concluded that the tenants are not entitled to the protection of the second proviso since both the ingredients of the second proviso are in the conjunctive. 5. Sri.G.Sreekumar (Chelur), learned counsel for the revision petitioners addressed very strenuous and extensive submissions before us in support of the various grounds raised by the revision petitioners in the memoranda of revision. He submitted that to begin with the landlord had invoked the ground under section 11(4)(iv) also and the original proposal was that the landlord will conduct furniture business in a portion of the proposed new building while re- RCR. N0s. 524/05 etc. -11- allotting portions equal to the portion presently occupied by the tenants to the tenants in terms of clause (iv) of sub- section (4) of section 11 of the Rent Control Act. Mr.Sreekumar submitted that the revision petitioners will not be much aggrieved if this court confirms the order of eviction converting the ground clause (iv) of sub-section (4) of section 11 from sub-section (3) of section 11. Mr.Sreekumar would further submit that there is enough land available with the landlord to make additional constructions necessary for accommodating the tenants also. The learned counsel cited the instance of the local Catholic Church having accommodated its tenants along with new tenants in a building which was reconstructed after demolishing an old building in the occupation of the tenants. Mr.Sreekumar submitted that though the dependency contemplated under sub-section (3) of section 11 is not financial dependency, it is unrealistic to say that PW-1 who RCR. N0s. 524/05 etc. -12- is the person who is actually conducting all the businesses for his father the landlord is a dependent on the landlord for the purpose of subsection (3) of section 11. Mr.Sreekumar pointed out that most of the tenants like the landlord himself are very old people having reached the twilight stage of their lives. It will be extremely difficult for them to scout for alternate accommodation. Mr.Sreekumar would assert that getting an alternate building in the locality which is the most important commercial locality of Chalakudy Municipal Town is almost an impossibility. According to the learned counsel, the first ingredient of the second proviso to sub-section (3) having been concurrently found in favour of the tenants there is every justification for vacating the finding of the Appellate Authority regarding the second ingredient. 6. All the submissions of Mr.Sreekumar were met effectively by Sri.S.V.Balakrishna Iyer, learned senior RCR. N0s. 524/05 etc. -13- counsel for the landlord. The landlord was in timber business for decades and the timber yard of the landlord existing adjacent to the petition schedule buildings itself was being conducted profitably by the landlord all these years. The learned senior counsel submitted that the case of the landlord all along is that ongoing timber business belongs to the landlord and that the landlord's son PW-1 is assisting the landlord for conduct of that business. The business of making and sale of furniture was a business allied to timber business and there was no circumstance to doubt the genuineness of the need projected by the landlord that he wants his son PW-1 to carry on his own furniture business in the new building to be constructed after demolishing the existing buildings. Senior counsel conceded that in the first round, the intention was also to let out portions of the newly constructed building to the present tenants. But on account of technical contentions raised by the tenants the earlier RCR. N0s. 524/05 etc. -14- rent control petitions either failed or had to be withdrawn and due to passage of long years, the profitability of constructing buildings for being let out to tenants has reduced considerably. Drawing our attention to the commissioner's report and the various photographs which were in evidence the learned senior counsel submitted that the buildings were so highly dilapidated due to the reason of age which was admittedly 100 years and the poor quality of the materials which had been used for the construction. The condition of the building according to the learned senior counsel, was dangerous and atleast portions of the buildings are on the verge of collapse. Drawing our attention to a sketch which had been produced by the commissioner along with his report he submitted that it is not possible to carry out the construction anywhere else on the fairly extensive plot owned by the landlord. According to him in order that the newly constructed building has frontage of the market RCR. N0s. 524/05 etc. -15- road in full it is necessary that all the buildings which are subject matter of the present rent control petitions are demolished. After consulting his client in response to our suggestion that atleast the senior most persons among the tenants including one Gangadhara Menon who was examined as the principal witness on behalf of the tenants before the Rent Control Court be accommodated in the upstair portion of the building to be constructed Mr.Balakrishna Iyer submitted that the landlord is unable to agree for reasons of non-availability of space and also for the reason that the relationship between the parties became strained by this time when more than 11 years have passed since the proceedings were initiated for getting eviction. Senior counsel however, submitted that the landlord will be prepared to offer reasonable shifting charges to the tenants which can be utilised for taking other buildings on lease, which according to the senior counsel are available in RCR. N0s. 524/05 etc. -16- Chalakudy. 7. In reply Mr.Sreekumar would reiterate his submissions that the landlord and his son are so rich and so busily engaged with their present business and they will not start yet another business. According to him, after demolishing the buildings the landlord is likely to keep the site as vacant site. He also pointed out that no petition for eviction has been instituted against another tenant occupying one room in the existing old building against whom RCP 35/98 had been unsuccessfully filed earlier. So long as that tenant does not vacate it will not be possible for the landlord to implement his proposal. 8. Mr.Balakrishna Iyer was permitted to answer this submission of Mr.Sreekumar and after consultation with his client he would submit that the said tenant against whom RCP No. 35/98 had been filed earlier has also vacated on 6- 11-2003. RCR. N0s. 524/05 etc. -17- 9. We have considered the rival submissions addressed at the Bar and since the findings entered by the Rent Control Court and the Appellate Authority are divergent we have scanned the entire evidence which came on record and the pleadings raised by the parties. We do not find any illegality, impropriety or irregularity about the judgment of the Appellate Authority which under the statutory scheme is the final court on facts. Admittedly, the landlord is a very successful business man doing business mainly in timber. The landlord's son PW-1 is assisting his father in father's timber business and the evidence shows that PW-1, the son does not have any building which belongs exclusively to him. The petition schedule buildings are about 100 years old. They are old fashioned buildings and atleast the hind portions of these buildings are on the verge of collapse. These buildings are situated by the side of market road in Chalakudy which is undoubtedly the most important RCR. N0s. 524/05 etc. -18- commercial area of the Chalakudy Municipal Town, one of the ancient most Municipal Town in the State. When the landlord comes forward with a case that he wants to demolish these very old buildings and put up a new building so that his son PW-1 can start furniture business in the new building the said need has to be accepted as a bona fide one in the absence of any oblique motive. Ofcourse in the first round of the litigation the landlord had invoked clause (iv) of sub-section (4) of section 11 also along with sub-section (3) of section 11. Had those earlier rent control petitions been allowed and order of eviction had been passed under section 11(4)(iv) also, all these tenants would have been allotted more or less the same area as they have in their possession now in the new building. The dismissal of the first rent control petition was only on the ground of maintainability, i.e., single rent control petition cannot be maintained in respect of different portions of a larger building. The second RCR. N0s. 524/05 etc. -19- rent control petition was got dismissed with liberty to file fresh rent control petition. The explanation offered by Mr. Balakrishna Iyer as to why his client has decided to seek eviction on the ground of sub-section (3) alone – the explanation that in the present point of time it is not profitable to construct building for the purpose of letting out is a fairly convincing one. We are also convinced that in order that a building which is sufficient for accommodating furniture making unit and furniture show room is constructed with direct frontage of the market road Chalakudy, it is necessary to construct the building as per the present plan itself and that there will not be much space to construct a building elsewhere with road frontage. Condition of the building and financial capacity of the landlord are beyond question. We do not find any infirmity whatsoever with the finding of the Appellate Authority that the need projected by the landlord is a bona fide one. All RCR. N0s. 524/05 etc. -20- the buildings in the possession of the landlord are already occupied by him for carrying on his activities. The only vacant building in his possession is perhaps the building which was subject matter of RCP. 35/98. That building is only one room in the larger building of which the schedule buildings are other parts. The availability of that building will not disentitle the landlord to order of eviction under sub-section (3). At any rate, there are special reasons to allow eviction against all the tenants under sub-section (3) of section 11 despite the landlord having vacant possession of that room. 10. The findings of the Rent Control Court and the Appellate Authority regarding the first ingredient of the second proviso to sub-section (3) are concurrent. We do not find any ground for interfering with that finding. But the two ingredients of the second proviso are in the conjunctive. In order that the tenant succeeds both the ingredients will RCR. N0s. 524/05 etc. -21- have to be established by him. The finding of the Rent Control Appellate Authority that other buildings are available in the locality, according to us, is founded on evidence. We do not find any infirmity about that finding which means that the tenants will not be entitled to the protection of the second proviso. 11. The result is that all the rent control revision petitions will stand dismissed. However, the respondent is reminded of sub-section (12) of section 11. It is made clear that if the buildings in question are demolished by the landlord on getting possession and if the site is kept either idle or is used as a timber yard, then also it will be open to the petitioners to seek appropriate effective orders from the Rent Control Court so that the remedy provided under the above sub-section becomes meaningful. Though the submission of the counsel for the respondent that the building which was subject matter of RCP. No. 35/98 was RCR. N0s. 524/05 etc. -22- surrendered on 6-11-2003 was not seriously opposed by the counsel for the revision petitioners, by way of abundant caution, we order that the execution court will order delivery only after ensuring that the landlord has already obtained possession of that building also. (PIUS C.KURIAKOSE, JUDGE) (C.K.ABDUL REHIM, JUDGE) ksv