IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 10TH FEBRUARY 2011 / 21ST MAGHA 1932 RCRev..No. 137 of 2009(A) ----------------------------------- RCA.98/2007 of II ADDL. RENT CONTROL APPELLATE AUTHORITY/II ADDL. DISTRICT COURT, KOZHIKODE RCP.82/2006 of ADDL.M.C.-I,KOZHIKODE. .................... REVISION PETITIONER (APPELLANT IN THE APPELLATE COURT & PETITIONER IN THE RENT CONTROL COURT) ---------------------------------------------------------------------------------------------------------------------- U.S.SANTHOSH KUMAR, S/O.BHASKARAN, ADUKKATH HOUSE, KUNNAMANGALAM P.O., KUNNAMANGALAM AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.S.VINOD BHAT RESPONDENT(S)/(RESPONDENTS IN THE APPELLATE COURT AND RESPONDENTS 1 TO 6 IN RENT CONTROL COURT): ---------------------------------------------------------------------------------------------------------------------------- 1. P.T.SUNDARAN, S/O.P.T.VELAYUDHAN, 8/43, KOORIYAL PARAMBU, CONVENT ROAD, NAGARAM AMSOM DESOM, KOZHIKODE TALUK. 2. LILLY, D/O.JOSEPH, 8/41, KOORIYAL PARAMBU, NAGARAM AMSOM DESOM, KOZHIKODE TALUK. 3. ALFONSA, D/O.JOSEPH, 8/41, KOORIYAL PARAMBU, NAGARAM AMSOM DESOM, KOZHIKODE TALUK. 4. MARY, D/O.JOSEPH, 8/41, KOORIYAL PARAMBU, NAGARAM AMSOM DESOM, KOZHIKODE TALUK. 5. THRESYA, D/O.JOSEPH, 8/41, KOORIYAL PARAMBU, NAGARAM AMSOM DESOM, KOZHIKODE TALUK. RCRev..No. 137 of 2009(A) -2- 6. FRANCIS, S/O.JOSEPH, 8/41, KOORIYAL PARAMBU, NAGARAM AMSOM DESOM, KOZHIKODE TALUK. ADV. SRI.R.BINDU (SASTHAMANGALAM) FOR R2 TO 6 SRI.K.B.SIVARAMAKRISHNAN FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 10/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & N. K. BALAKRISHNAN, JJ. ------------------------------------------------ R. C. R. No.137 of 2009 ------------------------------------------------ Dated this the 10th day of February, 2011 ORDER Balakrishnan, J The landlord is in revision. Petition for eviction on the ground of additional accommodation was filed in respect of four tenanted rooms, shown as 'A', 'B', 'C' and 'D' in the RCP. The landlord contended that he is conducting a lunch house in building bearing Nos.8/31 and 8/32. According to the landlord, since the space which is presently occupied by him in 8/31 and 8/32 is not sufficient, he is constrained to have his business in supply of 'noon meal' alone. It is contended that he actually intends to expand his business as a full-fledged hotel and for that purpose the buildings shown as 'A', 'B', 'C' and 'D' are required. It was further pleaded that he was using building bearing No.8/30 R. C. R. No.137 of 2009 -2- obtained on rent, for allied purposes in connection with the lunch house. According to him, he was paying huge rent for that building 8/30. So he sought eviction of all the petition schedule rooms. Though the four rooms were occupied by different tenants, as the claim was made under Section 11 (8) a single petition was filed. 2. Considering the Commission Report and the oral and other documentary evidence, the Rent Controller found that the landlord needs additional accommodation but only to the extent of satisfying his requirement so as to vacate the premises obtained on lease (8/30) and to have that much area by ordering eviction of 'C' and 'D' buildings/rooms. It was also found that the hardship that may be caused to the tenants occupying 'C' and 'D' schedule building will be comparatively less and that it will outweigh the advantage to the landlord in getting eviction of those two rooms and thus, order of eviction was passed in respect of 'C' and 'D' R. C. R. No.137 of 2009 -3- schedule buildings. Since the landlord could not get eviction of 'A' and 'B' schedule buildings, appeal was filed. 3. After re-appreciating the evidence, the learned Appellate Authority concurred with the view taken by the learned Rent Controller and dismissed the appeal. 4. Sri.S.Vinod Bhat, the learned counsel appearing for the revision petitioner submits that the learned Rent Controller has actually found that the landlord needs additional accommodation for expanding his business so as to conduct a full-fledged hotel, and so the courts below were not justified in rejecting his claim in respect of 'A' and 'B' schedule buildings. 'B' schedule building is situated in the ground floor facing to the fire station road. The 'A' schedule building is situated in the first floor. The learned counsel submits that though the rooms originally shown as 'C' and 'D' schedule were surrendered by the tenants the area available in those rooms does not satisfy the requirements R. C. R. No.137 of 2009 -4- of the landlord. The learned counsel further submits that the need for additional accommodation was countered by the tenants occupying 'A' and 'B' schedule buildings (rooms) stating that alternate accommodation is not available. The learned counsel also submits that the tenant occupying the 'B' schedule building was adamant in stating that even if alternate accommodation is available, she is not ready to shift unless she gets four rooms so as to enable all the legal heirs of the original tenant to occupy the same. The adamant nature of the tenants of 'B' schedule building was thus projected by the landlord to say that the tenant is so unreasonable. In any event, according to the learned counsel that cannot be a hardship which can be projected by a tenant in a claim under Section 11(8) of the Act. The learned counsel for the landlord would submit that once the need for additional accommodation is found to be genuine and bona fide, the non-availability of a suitable building for R. C. R. No.137 of 2009 -5- the tenant to occupy cannot be termed as a hardship that can outweigh the advantage to the landlord and to dis- entitle him from getting eviction under Section 11(8) of the Act. 5. The learned Counsel Sri.K.B.Sivaramakrishnan and Smt.R.Bindu (Sasthamangalam) appearing for respondents/ tenants would submit that subsequent to the disposal of the RCP, the landlord has obtained possession of Room No.8/33 which was earlier occupied by a Homeopathy Practitioner. The learned counsel submits that Room No.8/34 situated beside the aforesaid room was rented out to one Ravindran after getting the rent enhanced. But this submission is countered by Sri.Vinod Bhat stating that that is only a temporary arrangement and that the tenant (Sri.Raveendran) has agreed to vacate the building as and when the petition schedule buildings are got evicted and hotel business as proposed is started. Room No.8/38 also, R. C. R. No.137 of 2009 -6- according to the tenants, the landlord has obtained possession after the disposal of RCP. The learned counsel Sri.Vinod Bhat submits that that room is presently used by the landlord for storing vessels and prepared food and that he has actually used it for facilitating the business conducted in the lunch house. According to the learned counsel, the rooms which were subsequently obtained possession after the disposal of the RCP are also used for conducting the business. The fact that Room No.8/39 was also got evicted is not in dispute. According to the revision petitioner though Room Nos.8/39 and 8/40 were also obtained after the disposal of RCP, those rooms are not actually used for conducting business, but according to him, Room No.8/40 is used for storing fire wood required for the lunch house. The learned counsel submits that only after getting eviction of 'A' and 'B' schedule buildings, he can make suitable alterations and modifications as are required R. C. R. No.137 of 2009 -7- for conducting a full-fledged hotel. 6. The authorities below found that the landlord could not establish by cogent and satisfactory evidence the actual volume of business that is being conducted presently in the lunch house and as to what would be the actual requirement to start a full-fledged hotel. According to the tenants, the need projected is not honest and genuine. In the absence of acceptable evidence it cannot be said that the landlord requires the whole of the building including 'A' and 'B' schedule buildings/rooms. The statutory authorities have concurrently found that the need for additional accommodation projected by the landlord would be satisfied with 'C' and 'D' schedule buildings. Those tenants have already vacated the premises. Since at present there is no legal evidence as to the volume of business and as to the actual requirement, we are inclined to uphold the view taken by the two authorities below that additional accommodation R. C. R. No.137 of 2009 -8- sought for would be satisfied by using 'C' and 'D' schedule buildings. 7. We make it clear that after expanding his business as a full-fledged hotel if the landlord still finds that the accommodation is insufficient he can move the Rent Control Court again. Hence, this revision petition fails. 8. We also notice that the tenants occupying the 'B' schedule building are presently paying only Rs.50/- as monthly rent. Since the building is situated within Kozhikode Corporation and the rent that is being presently paid is very low, we propose to increase the monthly rent to Rs.1,000/- with effect from 01/03/11. The tenants occupying that building should also pay Rs.2,850/- which is the rent kept in arrears from the date of RCP within one month from today. If the rent is not paid, the landlord can seek eviction under Section 11(2)(b). So far as the tenant occupying 'A' schedule building is concerned, the rent presently paid is R. C. R. No.137 of 2009 -9- Rs.200/-, we propose to enhance the same to Rs.2,000/- with effect from 01/03/11. The rent fixed as above is tentative and if any of the parties is aggrieved they can move the Rent Control Court for regular fixation under Section 5 of the Act. Till then, rent shall be paid at the rates fixed as above. 9. In the result, this RCR is dismissed giving liberty to the landlord to file fresh RCP on all available grounds including the ground under Section 11(8) of the Act. PIUS C. KURIAKOSE JUDGE N. K. BALAKRISHNAN JUDGE kns/- R. C. R. No.137 of 2009 -10-