IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 29TH MARCH 2010 / 8TH CHAITHRA 1932 RCRev..No. 85 of 2010(D) ----------------------- RCA.31/2007 of ADDL.DISTRICT COURT,KOTTAYAM RC(OP).5/2006 of MUNSIFF COURT, VAIKOM .................... REVN.PETITIONER/APPELLANT/COUNTER PETITIONER ---------------------------------------------------------------- K.R.KARUNAKARAN, AGED 76, S/O. RAMAN, BLAVIL HOUSE, THALAYOLAPARAMBU, VADAYAR, VAIKOM. BY ADVS. MR. RAJEEV V.KURUP MR. ALEX.M.SCARIA MS. SARITHA RAVEENDRAN RESPONDENT(S): RESPONDENT/PETITIONER ------------------------------------ T.K.DINESAN, AGED 63, S/O. KRISHNAN, THACHARAYIL HOUSE, THALAYOLAPARAMBU P.O., VADAYAR, VAIKOM. ADV. MR. S.SREEKUMAR THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 29/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ---------------------------------- R.C.R. No.85 of 2010 ---------------------------------- Dated this the 29th day of March, 2010 O R D E R --------------- Abdul Rehim,J. The counter petitioner in RC(OP).No:5/2006 on the files of the Rent Control Court, Vaikom, who is the tenant of the petition schedule building, is in revision against concurrent orders of eviction passed by the Rent Control Court and the Appellate Authority, under Section 11(4)(ii) of the Kerala Buildings (Lease & Rent Control) Act, (the Act for short). Eventhough the Rent Control Petition was filed on the ground of arrears of rent and subletting also, no eviction was ordered on such grounds and there was no appeal filed by the landlord against rejection of such claims. Therefore the revision petition is concerned only with the order of eviction passed under Section 11(2) of the Act. 2. The petition schedule building is a small room having triangular shape, situated at Thalayolaparambu junction, which forms part of a large building owned by the landlord. The tenant is conducting a petty shop in the room. RCR.85/2010-D 2 Allegations in the Rent Control Petition is that, the tenant had encroached public road in front of the shop and illegally constructed additional veranda, side walls and platform by demolishing the boundary. Roof was also constructed by using iron bars permanently fitted to wall of the building, and that such construction of permanent nature are made in such a way to destroy value of the building materially and permanently, and that the construction was made in violation of Building Rules in an objectionable manner for which the landlord is liable to be proceeded against by the local authority. Inspite of repeated requests the tenant failed to demolish the illegal construction and the PWD authorities had issued notice to the petitioner requiring to demolish the same. The landlord claimed eviction under the above said circumstances on the grounds enumerated under Section 11 (4)(ii). 3. The tenant refuted contentions in the Rent Control Petition and allegations of illegal construction was denied. The Rent Control Court, while evaluating evidence on record based on Ext.C1 commission report and the rough sketch, arrived at a conclusion that additional construction as alleged in the petition has been made to the existing RCR.85/2010-D 3 building. It is observed that the tenant has no case that the additional construction was made by the landlord or his predecessor. It is found from Ext.A4 and A5, which are certified copies of FIR and scene mahazar prepared by the police authorities with respect to a criminal complaint lodged by the landlord, that additional construction was made by the tenant's son and his assistants, on 18.2.2000 midnight using cement, sand and laterite stones. Ext.A1 notice issued by PWD authorities was also taken note of by the trial court. On the basis of such evidence it is found that construction was made encroaching into road puramboke. It is found that construction having permanent nature by fixing iron bars to wall of the building for erecting the roof is made and such construction if demolished will cause damage to the building. Therefore it is found that there is material and permanent alteration made to the building in such a manner to diminish its value. Hence the finding is that the tenant is liable to be evicted under Section 11(4)(ii). 4. In appeal before the Appellate Authority, the tenant contended that the additional construction reported by the Commissioner is not of permanent nature and the same was effected only to facilitate business activity of the RCR.85/2010-D 4 tenant. It is contended that such construction can be removed at any time without causing damage to the building. But on an elaborate reappraisal of the entire evidence on record, the Appellate Authority found that the additional construction effected by the tenant are not of temporary nature and it cannot be removed without causing damage to the existing structure. It is found from the evidence adduced that the permanent structure like roof fitted using iron bars and angles could not be dismantled without demolishing the portion of the wall to which it is affixed. The Appellate Authority observed that the material alterations in the nature as evident is sufficient to attract requirement of Section 11 (4)(ii). It is further observed that such constructions were made without the knowledge and consent of the landlord and it is in the nature of affecting value and utility of the building materially and permanently. Hence order of eviction under Section 11(4)(ii) was perfectly justified, is the finding. 5. On a scanning of impugned order of the Rent Control Court as well as judgment of the Appellate Authority, we are of the considered opinion that no material irregularity can be found with respect to appreciation of evidence on the factual aspects. The conclusions arrived by the courts below RCR.85/2010-D 5 on proper appreciation of the evidence does not suffers from any infirmity. Within the contours of our jurisdiction vested under Section 20 of the Act, no interference is warranted to reverse any such findings of facts arrived by the courts below. Under the above circumstances, we find no merit to interfere with the concurrent findings arrived by the court below. Accordingly, the revision petition is liable to be dismissed. 6. However, Sri.Alex M.Scaria, learned counsel appearing for the revision petitioner sought indulgence of this court for granting one year period for surrendering vacant possession of the schedule premises. Sri.Sreekumar, learned counsel appearing for the respondent stiffly opposed the prayer. Considering the facts and circumstances, we are inclined to grant time till 31.12.2010. In the result the revision petition is disposed of on the following terms: (i). While dismissing the revision petition, time is granted to the revision petitioner/tenant to surrender vacant and peaceful possession of the schedule premises to the respondent/landlord, till 31.12.2010, subject to the condition that he will file an affidavit before the executing court undertaking to handover vacant possession of the building on RCR.85/2010-D 6 or before 31.12.2010 and also undertaking to pay arrears of rent if any due within a period of one month from today and also undertaking continued payment of occupational charges at the current rate of rent, till surrender of vacant possession of the room. Affidavit as directed above shall be filed within a period of one month from today. (ii). The executing court is directed to defer delivery of possession of the schedule premises till 1.1.2011, once filing of the affidavit as well as payment of arrears of rent and occupational charges as directed above is noticed. PIUS C.KURIAKOSE, JUDGE. C.K.ABDUL REHIM, JUDGE. okb