IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 21ST JANUARY 2009 / 1ST MAGHA 1930 RCRev..No. 276 of 2008() ------------------------ RCA.1/2006 of RENT CONTROL APPELLATE AUTHORITY (DISTRICT COURT), ALAPPUZHA RCP.42/1997 of PRINCIPAL MUNSIFF COURT(RENT CONTROL COURT), ALAPPUZHA .................... REVISION PETITIONER (APPELLANT/RESPONDENT).:- ---------------------------------------------------------- N.DIVAKARAN, YEKSHIVELIYIL, MARUTHORVATTOM MURI, THANEERMUKKOM NORTH VILLAGE. BY ADV. SRI.T.M.ABDUL LATHEEF SRI.A.MUHAMMED HASHIM RESPONDENTS: RESPONDENTS/PETITIONERS:- --------------------------------------- P.K.KURIAKOSE, PUNNACKKAL, MARUTHORVATTOM MURI, THANERMUKKOM NORTH VILLAGE. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 21/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & M.C. HARI RANI,JJ ============================== R.C.R.NO. 276 OF 2008 ============================ DATED THIS THE 21st DAY OF JANUARY 2009 ORDER Pius C.Kuriakose,J. The tenant against whom order of eviction has been concurrently passed by the Rent Control Court and the Appellate Authority on the grounds under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease & Rent Control)Act, (Act 2 of 1965), hereinafter referred to as ‘the Act’ is the petitioner in this revision petition under Section 20 of the Act. As for the eviction order passed under Section 11(2)(b) it was fairly submitted by Mr.T.M.Abdul Latiff, learned counsel for the revision petitioner that it will suffice if the statutory period of one month is given to make deposit or payment and to get that order of eviction vacated. Therefore, we do not propose to interfere with the order of eviction passed under Section 11(2)(b). We confirm that RCR 276/2008. -2- order, but directing the revision petitioner to pay the entire arrears of rent found to be due from him in respect of the building to the respondent within one month from today and to apply to the Rent Control Court for getting that order vacated under Section 11(2)(c) of the Act. 2. In the context of the substantial ground under Section 11(3), the landlord’s case was that he needs the building for occupation to his son Jubin Kuriakose, who is his dependent, so that Sri. Jubin Kuriakose can conduct business in storing and selling of building materials, like tiles, cement etc. In the first instance, the Rent Control Court found that the need of the Landlord was bona fide. However, it did not become inclined to allow the application on the reason that by the time the case was taken up for decision the dependent son Jubin Kuriakose had secured an employment in the Higher Secondary School as Peon. Therefore, taking the view that the need though bona fide,it was not subsist. The eviction order under Section 11(3) of the Act was declined. Against the order dismissing the R.C.P.,the respondent/landlord preferred R.C.A.27/1999 before the Rent RCR 276/2008. -3- Control Appellate Authority and that authority allowed the appeal and order for eviction under Section 11(3) of the Act was passed. Against the order of the Appellate Authority, the revision petitioner/tenant preferred C.R.P.No.980/2003 before this Court and this Court set aside the finding of the Appellate Authority and remanded the matter to the Rent Control Court to consider the following specific questions: 1) Whether the landlord’s need is a subsisting one? 2) Whether the building in question is suitable for the conduct of business in storing and selling of building materials ? 3) Whether the tenant is entitled for the benefit of second proviso to Section 11(3) of the Act. After remand, the landlord took out a commission, who filed Ext.C1 report, which is to the effect that the building in question is suitable for the conduct of the proposed business. Apart from that, Ext.A5 copy of eviction order passed by the Rent Control Court in respect of the adjacent room in favour of the landlord was also produced. PW2,the de facto claimant was also RCR 276/2008. -4- examined and he gave evidence to the effect that the moment he gets vacant possession of the schedule building, he will quit his present job as Peon in the Higher Secondary School since there is no scope for promotion nor is there any chance for securing any other better job as he did not pass the S.S.L.C. examination. Accepting the commissioner’s report as well as the oral evidence of PW2, the Rent Control Court would answer the first two points covered by the remand order passed by the said court in favour of the landlord. As for the third ground, the tenant is entitled to get the benefit of 2nd proviso to Section (3) of the Act, the Rent Control Court found that the revision petitioner/tenant failed in establishing that he satisfies either of the ingredients of the second proviso to Section 11(3) of the Act and accordingly order of eviction was passed. The Appellate Authority would re- appraise the findings and concurr with the conclusions of the Rent Control Court. 3. Mr.T.M.Abdul Latiff, learned counsel for the revision petitioner would assail the findings of the Rent Control Court and the Appellate Authority very strongly. He submitted that this was RCR 276/2008. -5- a case where PW2 is gainfully employed as a peon in the Higher Secondary School and therefore, he will not qualify as a dependent son. He further submitted that no evidence worthy of consideration was produced by the respondent to support the claim of PWs.1 and 2 that PW2 had not passed the S.S.L.C. examination and does not stand chance to get any other suitable Government employment. Mr.Abdul Latiff also submitted that the findings of the authorities below in the context of the second proviso to Section 11(3) are also wrong. He submitted that the version of PW2 that he will quit the job and do business in the petition schedule room once possession got back is unbelievable and that such a version was given before the Rent Control Court only for securing eviction order. Lastly, Mr. Latiff submitted that it is reliably understood that the schedule building as well as its site are going to be acquired at the instance of National Highway Authority of India for the four laning of NH 47. The learned counsel referred to Section 3A of the National High Way Act and submitted that under that provision the tenants in occupation are also entitled for a reasonable compensation and, RCR 276/2008. -6- therefore, this Court may not insist (in the event of the eviction order being confirmed) that the building is surrendered immediately. Mr.Abdul Latiff submitted that the notification under Section 3A of the National Highway Act will be promulgated at the latest within six months. We have considered the submissions of Mr.Abdul Latiff . 4. We have carefully gone through the orders passed by the Rent Control Court and the Appellate Authority. We are not impressed by the submissions of Mr.Abdul Latiff that PW2 having secured employment in the Higher Secondary School has ceased to be a dependent of his father. It is trite that dependency contemplated under Section 11(3) of the Act is not merely financial dependency. It is dependency for the purpose of a building for residential or commercial accommodation as the case may be. There is no case of the revision petitioner that PW2 is having other buildings of his own. 5. We do not think that the apprehension of the petitioner that after taking delivery of the petition schedule building, PW2 will not keep his word that he will quit his job in the Higher RCR 276/2008. -7- Secondary School as Peon and start business in the petition schedule building. We are also not impressed by the arguments that cogent evidence has not been produced by PW2 to show that his version that he has not passed S.S.L.C. examination is not correct. Being a negative aspect, PW2 cannot have any evidence other than oral evidence to support his case that he has not passed the S.S.L.C. examination. If it is the case of the revision petitioner that PW2 has passed S.S.L.C. examination and is eligible for higher studies and better employment in Government service, the revision petitioner could have adduced evidence to prove the same by taking requisite steps. Going by the evidence of PW2, he has not passed S.S.L.C. examination and he is presently working as a Peon without any chance for promotion in the Higher Secondary Education service. Being not even a matriculate, he cannot aspire for any higher jobs in other departments also. When such a person testifies before the court that he will rather do business in a building belonging to his father and derive much more income, we cannot blame the courts below for having accepted that version as correct. RCR 276/2008. -8- Importantly, the need of the father was consistently found by the authorities under the Rent Control Act to be bona fide. Even this Court while passing the initial order of remand only directed to examine the question as to whether the above need is subsisting in view of the subsequent event of PW2 securing employment. The version of PW2 that he will give up employment once he gets the building inspired the two fact finding authorities under the Rent Control Act and accordingly they held that the need subsists, we do not find any ground for interference with their findings warranting correction under Section 20 of the Act. According to us, even if the unlikely event of PW2 not giving up his job as Peon in the Higher Secondary School after he has secured actual eviction happens, the petitioner does not have to worry. Section 11(12) of the Act, according to us, provides him with a remedy. Section 11(12) is quoted below: 12. Where a landlord who has obtained possession of a building in pursuance of an order under sub-section(3), does not occupy it without reasonable cause within one month of RCR 276/2008. -9- the date of obtaining possession, or having so occupied it, vacates it without reasonable cause within six months of such date, the tenant who has been evicted may apply to the Rent Control Court for an order directing that he shall be restored to possession of the building, and the Court shall make an order accordingly notwithstanding anything contained in section 4. If the revision petitioner notices that PW2 has not given up his present job in the Higher Secondary School and not occupied the schedule building for doing business even after one month of getting surrender of the petition schedule building, the revision petitioner can file an application under Section 11(12) of the Act seeking appropriate directions for his re-induction into the building and we are sure that if such an application is received by the Rent Control Court, that court will pass effective orders on the same. In order that the above direction becomes meaningful, we are issuing other directions also in this judgment. On the other aspects covered by the remand order of this Court, i.e. suitability of the petition schedule building and the revision petitioner is entitled to the benefit of second proviso RCR 276/2008. -10- to Section 11(3) of the Act, we find that the conclusions of the authorities below are founded on acceptable legal evidence and according to us, there is no warrant for interfering with those conclusions. 6. The result is that the revision petition will fail. However, considering the submissions of Mr.Abdul Latiff made in the context of the proposed acquisition under the National Highway Act and in the context of the revision petitioner's apprehension that PW2 will not quit the job, we are inclined to issue the following directions: 1) The Execution Court will not evict the petitioner from the petition schedule building till 22-7-2009 subject to the following conditions: 2) The petitioner will file an affidavit before the Execution Court undertaking to discharge the entire arrears of rent as found by the Rent Control Court under Section 11(2)(b) of the Act and continue to pay the rent which falls due subsequently till the date he actually surrenders the building. 3) The respondent will not induct anybody else into the petition RCR 276/2008. -11- schedule building by sale, lease or other demise till PW2 starts business in the schedule building giving effect to the order passed under Section 11(3) of the Act. The respondent is directed to ensure that PW2 occupies the petition schedule building and commence the proposed business within one month of his getting possession of the same. It is needless to mention that if the respondent fails to occupy the building within one month as directed above, the revision petitioner will be entitled to apply under Section 11(2) of the Act before the Rent Control Court in which case that court will consider and pass effective orders on that application as indicated herein. PIUS C. KURIAKOSE, JUDGE M.C. HARI RANI, JUDGE ks.