IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 10TH JUNE 2010 / 20TH JYAISTHA 1932 RCRev..No. 163 of 2004(A) ------------------------- RCA.113/2000 of ADDL.DISTRICT COURT, THRISSUR RCP.86/1996 of PRL.MUNSIFF COURT,THRISSUR .................... (S): REVISION PETITIONERS/RESPONDENTS 1 7 2. ----------------------------------------------------------- 1. KIZHAKKE SAMOOHAM, VAKKEVEETTUVAZHI, ARANATTUKARA,R EGISTRATION NO.8, ARANATTUKARA VILLAGE, THRISSUR TALUK. REP. BY ITS PRESIDENT LONAPPAN, S/O.THARAYIL VELIYANNUKKARAN LONAPPAN, KUNNAMKATTUKARA DESOM, MARATHAKKARA VILLAGE,THRISSUR TALUK. 2. SECRETARY, BABU, S/O.CHIRIYANKANDATH PALLIPURATHUKARAN PAUL, ARANATTUKARA VILLAGE, THRISSUR TALUK. BY ADV. SRI.V.CHITAMBARESH SRI.T.C.SURESH MENON SMT.M.R.VALSA SRI.SREEKANTH.K.R SMT.G.GEETHISHA RESPONDENT(S): APPELLANTS RESPONDENTS. -------------------------------------- 1. COASTAL TRADERS, ARANATTUKARA VILLAGE, VADAKKEANGADI, THRISSUR TALUK. 2. KIRAN, (PARTNER, COASTAL TRADERS), S/O.POTTEKKATT SURENDRAN, CLARI DESOM, ARANATTUKARA VILLAGE, THRISSUR TALUK. 3. SURYAKALA, (PARTNER, COASTAL TRADERS), D/O.POTTEKKATT SURENDRAN, CLARI DESOM, ARANATTUKARA VILLAGE, THRISSUR TALUK. 4. GOPINATHAN, S/O.POTTEKKADAN RAGHAVAN, MAMBULLI DESOM, KARAMUCK VILLAGE, THRISSUR TALUK. 5. MADHUSOODHANAN, S/O.KOZHIPARAMBIL SANKARAN, EDAMUTTAM VILLAGE, THRISSUR TALUK. 6. SANKARANARAYANAN ALIAS KUTTAN, S/O.POTTEKKATT RAGHAVAN, MAMBULLLI, KANDASSANKKADAVU, THRISSUR DISTRICT. ADV. SRI.P.K.ASHOKAN FOR R2,5& 6 SRI.M.R.VENUGOPAL FOR R2,5 & 6 SRI.M.R.VENUGOPAL FOR R2 SMT.DHANYA P.ASHOKAN FOR R2 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 10/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: RCR. 163/04 -1- PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ. ----------------------------------------------- RCR. No. 163 of 2004 ----------------------------------------------- Dated this the 10th day of June, 2010 O R D E R Pius C.Kuriakose, J. The landlord is in revision being aggrieved by the judgment of the Rent Control Appellate Authority declining eviction on the ground under Section 11(8). The landlord is the Kizhakkesamooham, Aranattukara, an association of persons having a current membership strength of 24. The case of the landlord as stated in the rent control petition was that the premises presently possessed by the landlord is only a lean-to portion of the petition schedule building and that the said premises being very small, is not sufficient for conducting the periodical meetings of the landlord Samooham. Hence it is urged that the Samooham needs possession of the petition schedule building by way of additional accommodation for their personal use, so that the lean-to portion in their possession as well as the petition schedule building can be conveniently used by the RCR. 163/04 -2- Samooham for the conduct of periodical meetings. In fact in the rent control petition the ground under sub-section (3) of Section 11 and also the ground of arrears of rent had been invoked. The ground of arrears of rent did not survive even before the Rent Control Court as the entire arrears demanded under the statutory demand notice had been discharged before the RCP went for trial. The ground under sub-section (3) of Section 11 also did not survive as on behalf of the landlord it was submitted before the Rent Control Court started trial that the claim for eviction under sub-section (3) is not pressed and that the claim need only be enquired under sub-section (8) of Section 11. Before the Rent Control Court the evidence consisted of Exts.A1 to A9, B1 to B3, C1 commission report submitted on the basis of a local inspection, X-1 and X-1(a) vacancy register, oral evidence of PW1, a representative of the landlord Samooham and witnesses RWs. 1 to 3. The Rent Control Court on appreciating evidence came to the conclusion that the need raised for additional accommodation was a bonafide one. For arriving at such a conclusion strong RCR. 163/04 -3- reliance was placed by the Rent Control Court on Ext.C1 and also Ext. A2 minutes book. C1 was to the effect that the total area of the petition schedule building was around 170 sq. ft. while the area under the possession of the landlord was around 70 sq. ft. C1 was also to the effect that there is acute shortage of space in the lean-to portion possessed by the landlord and that at a maximum only 15 persons can be comfortably accommodated in that room. A2 minutes book showed that at an average of 14 to 15 persons were attending the periodical meetings of the landlord Samooham which is to be held once in two or three months. The Rent Control Court considered the applicability of proviso to sub- section (10) of Section 11. It was found that the advantages which the landlord will gain by ordering eviction will be considerable. It was further found that the hardship to be sustained by the tenant will not be that much as it had become evident that the tenant was doing the same business in other places also and also since by Ext. C1 report and also by the oral evidence of RW1 himself it had become evident that one of the tenants was having vacant RCR. 163/04 -4- building not far away from his residential building in Kanjani though that the tenant would state that the said building is set apart to the share of his son. On the above basis it was found that the hardship if any to be sustained by the landlord will not outweigh the advantages to be gained by the landlord. Accordingly order of eviction was passed under sub-section (8) of Section 11. An appeal was preferred to the Rent Control Appellate Authority by the tenants. The Appellate Authority re-appraised the evidence. The Appellate Authority noticed that in 1982 the landlord had sought to evict the tenant on the ground under sub- section (3) of Section 11 projecting the need that the landlord wants to conduct a chitty business in the building. The Appellate Authority found that the RCP filed in 1982 was dismissed concurrently by the Rent Control Court and the Appellate Authority and that even the revision which was filed by the landlord was got dismissed as not pressed. Relying on Ext.A2 minutes, the Appellate Authority found that on an average only 14 to 15 members of the landlord Samooham were attending the meetings of the Samooham. RCR. 163/04 -5- According to the Appellate Authority no evidence was available to show that the membership strength of the landlord Samooham had swelled after 1982. According to the Appellate Authority the landlord had been adjusting with the area in their possession which is capable of accommodating 15 persons for so long and it is possible for the landlord to continue to adjust with that area. Taking the view that there is no dire necessity for the landlord to have possession of the petition schedule building, the Appellate Authority would reverse the finding of the Rent Control Court and dismiss the RCP. In doing so, the Appellate Authority also concluded that as the landlord will be able to hold their meetings as they had been doing all these years in the premises in their possession and as order of eviction would mean ejection of an entrenched tenant, the hardship to be sustained by the tenant will outweigh whatever advantages the landlord may gain. Accordingly the order of eviction was completely set aside and the RCP was dismissed. 2. In this revision under Section 20 various grounds RCR. 163/04 -6- have been raised assailing the judgment of the Appellate Authority and Sri.V. Chitambaresh, learned senior counsel for the revision petitioner addressed strenuous and persuasive arguments before us based on those grounds. The learned senior counsel submitted that it is trite that the standards for establishing bonafides in a case for eviction under sub-section (8) of Section 11 are more liberal than the standards necessary in a case under sub-section (3) of Section 11. According to the learned senior counsel the concept of dire necessity is foreign to our Rent Control Law. Even under 11(3) what is required is only a reasonable need not actuated by any oblique motives. Mr. Chitambaresgh submitted that the Rent Control Appellate Authority appears to have been prejudiced against the landlord in view of the landlord's unsuccessful pursuit of the previous RCP. The previous RCP was dismissed only on the ground that the need which was sought to be pursued in the previous RCP, i.e., the need for conduct of meetings was not founded in the pleadings. In the present case, the pleaded case is the need for additional accommodation for conduct of meetings. RCR. 163/04 -7- Though the Appellate Authority is right in saying that at the stage of evidence the landlord endeavoured to develop their case and say that space is required for recreational activities of the children of the members of the Samooham. Even if that part of the evidence of the landlord is eschewed as beyond pleadings, then also the need projected, which is for the additional accommodation, is a very reasonable need. The learned senior counsel in this context highlighted that the total area under the possession of the landlord according to the tenant is not more than 70 sq. ft. That area is grossly inadequate for 15 to 20 persons to hold meetings comfortably. In order that 15 to 20 persons to meet comfortably and deliberate on serious matters, an area of 200 to 250 sq. ft. will be necessary and that is the total area of the petition schedule building and the lean-to portion presently under the possession of the landlord. Counsel submitted that under sub-section (8) of Section 11 additional accommodation can be allowed even if the same amounts to a luxury. The only enquiry which the statutory authorities are expected to make is whether in seeking RCR. 163/04 -8- additional accommodation the landlord is actuated by any oblique motive. No oblique motive has been established in this particular case, so submitted the learned senior counsel. According to him, there was absolutely no warrant for the Appellate Authority to have interfered with a well reasoned order passed by the Rent Control Court. 3. All the submissions of the learned senior counsel were resisted by Mr.M.R.Venugopal, the learned counsel for the respondent tenant. The learned counsel submitted that if what the landlord deposed while giving evidence in 1982 is correct the present need for additional accommodation for holding meetings should have been in existence in 1982 itself. But in 1982 the need projected was not this need. On the contrary, the need projected then was the need for conducting chitty business. That need was virtually given up at the time of evidence and the present need was projected. That RCP was dismissed. The appeal was also unsuccessful. Revision preferred to this Court was got dismissed without seeking the leave of the Court to initiate fresh proceedings. It was close on the heels of the RCR. 163/04 -9- judgment in the previous CRP that the present RCP projecting the present need is filed. This time also at the stage of evidence the landlord comes forward with a case of needing space for recreation for the children of the members. The bonafides of this landlord cannot be taken for granted, so submitted Mr.Venugopal. Mr. Venugopal then submitted that the petition schedule building is not an independent building. The backside portion of that building which also belongs to the landlord is already sold by the landlord to an abkari contractor for a fabulous price. The landlord wanted to sell the petition schedule building also to the same contractor. But since the petition schedule building is possessed by the tenant, the sale did not come through. The real intention in seeking eviction is to sell the petition schedule building to the selfsame contractor, so that fabulous amounts can be received. Mr. Venugopal submitted that Ext.A2 will show that on an average only 14 to 15 members are participating in the meetings of the landlord Samooham. C-1 commission report is to the effect that atleast 15 persons can meet in the portion in the RCR. 163/04 -10- possession of the landlord. It is only occasional meetings that are being conducted. The landlord can continue to conduct such meetings in the premises at their possession now. Therefore in the arguments of the learned counsel no special advantage is going to be gained by the landlord whereas if the tenant is evicted from the petition schedule building it will be extremely difficult for the tenant to get another building on lease and it will be still more difficult to obtain the explosives licence which the tenant could obtain in respect of the petition schedule building with considerable difficulty. Thus the hardship to be sustained if eviction order is passed will be much more than the nominal advantage which the landlord may gain. 4. We have very anxiously considered the rival submissions addressed at the Bar. Since findings are divergent we have gone through the pleadings and the evidence especially those items of the evidence to which our attention was drown by the learned counsel on either sides during their submissions. We have scanned the order of the Rent Control Court and the judgment of the Appellate RCR. 163/04 -11- Authority. The question that arises for consideration is whether the judgment of the Rent Control Appellate Authority reversing the order of eviction passed by the Rent Control Court under Section 11(8) is legal, regular and proper within the purview of Section 20 of Act 2 of 1965. 5. As rightly argued by Mr.Chitambaresh, the concept of dire necessity has nothing to do with section 11(8) and for that matter that Section 11(3) of the Kerala Rent Control Act. Even under sub-section (3) of Section 11 in order that a bonafide need projected by the landlord is upheld by the statutory authorities what is necessary is only that the need should be found to be a reasonable need involving an element of necessity not actuated by any oblique motives. When it comes to sub-section (8) of Section 11 the standards for establishing bonafides are more liberal. In a claim under sub-section (8) the statutory authorities need only enquire whether in seeking eviction for personal use by way of additional accommodation the landlord is projecting a reasonable need not actuated by any oblique motives. It is not disputed that the landlord RCR. 163/04 -12- Samooham is an association of persons having a membership strength of 24. It is also not disputed that atleast periodically the landlord Samooham is holding its meetings in a building which is actually the lean-to portion of the petition schedule building. It is evident that the total area available in the above lean-to portion is around 70 sq. ft. only as against an area of roughly 170 sq. ft. available in the petition schedule building. Even the Appellate Authority under its judgment does not opine that the landlord Samooham had been conducting its periodical meetings comfortably in the area in their possession. On the contrary the finding is that the landlord Samooham had been adjusting all the past years in the area under their possession. We also find that during the past years the landlord had been adjusting. The question is whether when a landlord comes forward with a case that it is no longer interested in adjusting in a small room and wants to have the petition schedule building also so that it can have its periodical meetings conducted comfortably, it is possible for the statutory authorities and for that matter this revisional RCR. 163/04 -13- court to say that the landlord is projecting a need which is not genuine. According to us, in the fact situation obtaining in the present case, the need projected by the landlord is one which can be presumed to be bonafide and can be accepted in the absence of strong circumstances indicating that the need is not a bonafide one. The one circumstance which was highlighted by Mr.Venugopal was the circumstance of the landlord having unsuccessfully pursued a previous RCP. But then, the need which had been projected in the previous RCP was an entirely different need. The statutory authorities did not accept that need mainly on the reason that at the time when the case came up for trial the landlord endeavoured to prove a different need, significantly the need which is projected in the present RCP. According to us, the landlord's failure in the previous RCP cannot be a reason for holding that the need projected in the present RCP is not bonafide. The present RCP will have to be decided on the basis of evidence, including circumstantial evidence obtaining in the present case. Another circumstance which is highlighted by Mr.Venugopal RCR. 163/04 -14- before us is the circumstance of the landlord selling the backside of the petition schedule building to an abkari contractor and the landlord's intention to sell the petition schedule building also to the same contractor once eviction order is passed. According to us, this is only an apprehension in the mind of the tenant. However, though an order of eviction under Section 11 (8) is not qualified by a provision similar to sub-section (12) of Section 11 we feel that appropriate directions and orders can be passed in this judgment, so that the tenants apprehension does not come true. According to us, applying the liberal standards which are applicable for the establishment of bonafides in a claim under sub-section (8) of Section 11 the learned Rent Control Court was perfectly justified on the evidence on record in coming to the conclusion that the need was bona fide. 6. Now the only surviving question is whether the RCP will fail by the operation of the proviso to sub-section (10) of Section 11. It is clear that if possession of the petition schedule building is obtained it will be possible for the landlord Samooham to conduct its meetings very RCR. 163/04 -15- comfortably by utilising the total area which will be around 250 sq. ft. No acceptable legal evidence is available in the case to hold that it will be impossible for the tenant to obtain the statutory licences necessary for conducting the business presently conducted in the petition schedule building, viz., storage of industrial gas cylinders. There is some evidence in this case which will show that the son of one of the tenants is having possession of a vacant building situated at a distance of 500 ft. from the residential building of that tenant and we don't find any acceptable evidence adduced by the tenant to show that other buildings are not available in the locality for the tenant to shift their business. According to us, though the tenants may sustain some hardship as any other entrenched tenant who is being evicted, such hardship will not outweigh the advantage which the landlord in this case will definitely gain. 7. The above discussions would lead this case to the following inevitable result: The RCR will stand allowed. The judgment of the Rent Control Appellate Authority is set aside and the order of the RCR. 163/04 -16- Rent Control Court is restored. However, on considerations of indulgence and in view of the practical difficulties which the tenant may have in obtaining licence, we feel that a reasonably long period of time can be given to them to surrender the building. Hence, even as we allow the RCR and order eviction under sub-section (8) of Section 11 we direct the execution court not to order and effect delivery till 31-3-2011 provided the following conditions are to be complied with. (1) The tenants would file affidavit before the execution court or the Rent Control Court, as the case may be, undertaking to give peaceful surrender of the building to the landlord Samooham or its Present on or before 31-3- 2011. (2) It will also be undertaken by the tenants through the same affidavit the arrears of rent as alleged by the landlord in IA. No. 953 of 2010 will be paid to the landlord within six weeks from today and that occupational charges at the current rate of Rs.100/- will be paid every month as and when it falls till 31-3-2011. RCR. 163/04 -17- We make it clear that unless the affidavit as directed above is filed the respondent tenant will not get the benefit of time granted as above. (PIUS C.KURIAKOSE, JUDGE) (C.K.ABDUL REHIM, JUDGE) ksv/-