IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 9TH DECEMBER 2009 / 18TH AGRAHAYANA 1931 RCRev..No. 99 of 2009() ----------------------- RCA.28/2005 OF RENT CONTROL APPELLATE AUTHORITY, KOTTAYAM RCOP.8/2003 OF RENT CONTROL COURT, KOTTAYAM .................... REVISION PETTIIONER/RESPONDENT/PETITIONER ------------------------------------------------------------- KOTTAYAM PUBLIC LIBRARY, REPRESENTED BY THE SECRETARY, C.G.VASUDEVAN NAIR, CHEEROTH, KODIMATHA, KOTTAYAM. BY ADV. SRI.BECHU KURIAN THOMAS SMT.NISHA JOHN RESPONDENT(S): APPELLANT/COUNTER PETITIONER ------------------------------------------- JOHN MANI, AGED 56, JOHNSONS SWEET STALL, BUILDING NO.854, KOTTAYAM PUBLIC LIBRARY BUILDING, WARD NO.IX, KOTTAYAM MUNICIPALITY. ADV. SRI.S.SREEKUMAR FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 09/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & K. SURENDRA MOHAN, JJ. ------------------------------------------ RCR. No. 99 of 2009 ------------------------------------------- Dated this the 9th day of December, 2009 O R D E R Pius C. Kuriakose, J. The landlord, Kottayam Public Library is in revision, being aggrieved by the judgment of the Rent Control Appellate Authority dismissing the RCP filed by them on the ground under Sub Section (7) of Section 11 of Act 2 of 1965. The parties will be referred to as landlord and tenant respectively. The case of the landlord as set out in the RCP was that the landlord is a charitable and educational society registered under Act 12 of 1955 and that for implementing the aims and objects of the society the subject building is required for the purpose of starting a computer centre. According to the landlord the petition schedule building possessed by the respondent as tenant is very convenient and suitable for starting the proposed computer centre. The executive committee of the petitioner society has taken a RCR.99/09 - 2 - decision to locate the computer centre in the building. In anticipation of a claim by the respondent for a protection of the second proviso to Sub Section (3) of Act 2 of 1965, the landlord also stated that the respondent-tenant does not depend on the income that he derives from the business carried on from the petition schedule building for his livelihood. The respondent objected to the RCP contending that the petition is actuated by malafides. It was contended that the landlord Library has absolutely no intention to start a computer centre in the building. It was alleged that the RCP has been instituted out of the personal spite of the present president and secretary of the library towards the tenant for not having yielded to their demand for unconscionable enhancement of rent. It was also contended that the signatory to the RCP is not competent to represent the library. It was alleged that previously in 1984 the landlord attempted to evict the tenant unsuccessfully to evict the tenant by launching a petition on the ground of RCR.99/09 - 3 - subletting. It was stated that the tenant is being treated very badly by the landlord, though previously without any demur the tenant had obliged to the request of the landlord to shift from the present premises so as to pave way of the reconstruction of the building. Refuting the bonafides of the claim it is pointed out in the statement of objections that the entire third floor of the building is currently being used for the purpose of computer centre. The space available in the third floor is more than sufficient. It is pointed out that the instant petition is for extortion of unconscionable rent. Starting of computer centre is not one of the aims and objects of the library. The subject building is not convenient or suitable for the proposed purpose. Recently about 1600 sq. ft. of space in the ground floor fell vacant but the landlord let out the same to private individuals. This action demonstrates the absence of benefits for the claim now raised by the landlord. It is also pointed out that in a portion of the main building where the Kottayam Public RCR.99/09 - 4 - Library is functioning, previously the local First Class Magistrate's Court was functioning and apart from the building vacated by the First Class Magistrate's Court the library has got number of buildings in the Kottayam Municipal Town in their possession. It is contended that the main object of the library is to let out buildings and derive rental income. The decision of the landlord to choose the petition schedule room for the purpose stated in the RCP is described in the statement of objection as irrational and a ruse for evicting the tenant out of personal grudge which the present secretary and library harbours against the tenant. 2. The rent control court enquired into the RCP and at trial before that Court the evidence consisted of documents Exts. A1 to A5, B1 to B4, Commission report Ext.C1, Ext.X1 vacancy register produced by the Accommodation Controller and oral testimonies of P.W.1 Vasudevan Nair (the Secretary of the Library at the time of the institution of the RCR.99/09 - 5 - RCP) and CPW1 the tenant and CPW2 the Accommodation Controller. The Rent Control Court rightly noticed that the only point which arises for consideration is whether eviction was grantable under Sub Section (7) of Section 11 of Act 2 of 1965. 3. On appreciating the evidence which came on record that court came to the conclusion that no reasons have been brought out by the tenant for holding that the need projected by the landlord is not a genuine and bonafide one. It was accordingly held that the need urged by the landlord is a bonafide one and accordingly passed an order of eviction under Sub Section (7) of Section 11. The tenant carried the matter in appeal to the Rent Control Appellate Authority. The Appellate Authority considered Ext.A2 byelaws pertaining to the landlord Library and concluded that the purpose projected in the RCP squarely falls within the aims and objects of the Library. However, on making a re-appraisal of the evidence that Authority held that the RCR.99/09 - 6 - need is not a bonafide one. In coming to such a conclusion the Appellate Authority has highlighted that there is no consistency with respect to the purpose stated by the landlord and also that the landlord has other space available with them for fulfilling the purpose which is sought to be achieved after getting eviction of the petition schedule building. In this context the Appellate Authority points out that in Ext. B1 notice which was sent by the landlord even prior to Ext. A4 lawyer notice as a prelude for the Rent Control Petition what was stated was that sse{_dn AwK§Ä¡v ({]tXyIn¨v Ip«nIÄ, h\nXIÄ, hnIemwKÀ XpS§nbhÀ¡v) hmbn¡póXn\pw hfÀóp hcpó hnhckmt¦XnIhnZybpsS `mKambn Iw]yq«À kwhn[m\w GÀs¸Sp¯póXn\pw aäpw sse{_dnhI Xmgs¯ \nebnepÅ ISIÄ Hgn¸ns¨Sp¯v hcnIbmWv. {]kvXpX {]hÀ¯\§Ä¡v IqSpXð Øew thïnhcpóXn\mð Xm¦fpsS kzoäv ÌmÄ \S¯póIS IqSn Hgn¸ns¨Sp¡póXn\v sse{_dn amt\PnwKv I½än Xocpam\n¡pIbpïmbn. According to the Appellate Authority during cross examination of PW1 it was brought out that he was no RCR.99/09 - 7 - longer the Secretary of the landlord/library and hence, he was no more competent to swear to the alleged need of the library or regarding the bona fides of the need. The Appellate Authority also noticed that an area extending to about 1600 or 1800 sq. ft. previously occupied by a tenant, textile fair is presently being occupied by Plaza Jewellery with the consent of the landlord. According to the Appellate Authority, the explanation of PW1 as to why the premises presently occupied by Plaza Jewellery could not be utilised for starting computer centre is not convincing. The Appellate Authority also notices that in the library's building on Shastri Road previously a Magistrate's Court was functioning and no explanation is forthcoming as to why the proposed computer centre cannot be started in the building at Shastri Road where Magistrate's Court was previously functioning. The Appellate Authority also noticed that the Rent Control Petition does not clarify as to whether the proposed computer centre is part of library intended to fill data RCR.99/09 - 8 - regarding goods for easy operation of the library or whether it is a computer centre intended to give training to the people. The evidence of PW1 it is to the effect that it is intended to give training, is not accepted by the Appellate Authority on the reason that the same is not founded on pleadings. The Appellate Authority would highlight a passage in PW1's evidence and conclude that the real purpose behind seeking eviction was to install a capsule lift for entering the fourth floor. This need runs in conflict with the need projected and hence, the Appellate Authority concluded that element of bona fides is conspicuously absent in the landlord's claim. On the basis of that conclusion the Appellate Authority set aside the Rent Control Court's order and dismissed the RCP. 4. In this revision under section 20 various grounds have been raised assailing the judgment of the Appellate Authority. Very extensive arguments were addressed before us by Sri.Bechu Kurian Thomas, the learned counsel for the RCR.99/09 - 9 - revision petitioner on the basis of grounds raised in the memorandum. All the submissions of Sri.Bechu were resisted by Sri.S.Sreekumar, the learned counsel for the respondent/tenant. Sri.Bechu Kurian Thomas submitted that the Appellate Authority failed to understand the scope of sub section 7 of section 11 which was specially enacted for the benefit of the institutions like the landlord/library which served the public good. According to him, once it is established that a tenanted building is required for the purposes of public institutions like petitioner library order of eviction can be passed. The demand for enhanced rent at the earlier point of time has been highlighted by the Appellate Authority as a circumstance to conclude that the need is not bona fide. The view of the Appellate Authority is contrary to the decision of this Court in 2008(1) KLT 789. The judgment of the Appellate Authority is the result of an erroneous appreciation of evidence on recording the case. The same is vitiated by illegality, irregularity or impropriety. RCR.99/09 - 10 - The evidence of PW1 ought to have been appreciated as a whole. When it is so done, it will be seen that installation of capsule lift was only incidental to the purpose gained by the landlord library. The capsule lift will not be inside the petition schedule building. It will be outside the premises - Mr.Bechu argued by highlighting on the nature and position of the petition schedule premises in relation to the remainder portions of the larger building of which the petition schedule building is a part. Mr.Bechu fortified his submissions by citing various decisions including the judgment of this Court in Sree Narayana Dharmasabha v. Sathiapalan (2004(2) KLT 373) and another recent judgment of this Court in Social Service Guild of Assissi Sisters v. Ouseph Chacko (2009(2) KLT 199) to both of which one among us [PCK(J)] was a party. All the submissions of Mr.Bechu Kurian Thomas were strongly opposed by Sri.S.Sreekumar. He submitted that under the statutory scheme the final court on facts is the Rent Control RCR.99/09 - 11 - Appellate Authority. When that Authority has entered finding on fact based on appreciation of evidence it is not for this Court to upset those findings on re-appreciation of the evidence. The finding of the fact finding court that the need is not bona fide does not suffer from any infirmity as envisaged by section 20 of Act 2 of 1965. According to Mr. Sreekumar, sub-section (7) of Section 11 is also qualified by sub-section (10) of Section 11 and the application has to be rejected once it is found that the same is without bona fides. Reminding us of the contours of the revisional jurisdiction under Section 20 Mr. Sreekumar argued that in the present jurisdiction, this court is not expected to reappraise the evidence for the purpose of arriving at factual conclusions different from those arrived at by the final fact finding authority. According to Mr.Sreekumar, PW1, the former secretary of the library has an axe to grind against the tenant. This was why he insisted on himself giving oral evidence in support of the rent control petition despite RCR.99/09 - 12 - having demitted office as secretary. Mr.Sreekumar submitted that a careful scrutiny of his evidence will show that the real purpose behind evicting the tenant is to construct a capsule lift so as to access the 4th floor of the larger building. This purpose is inconsistent with the purpose projected in the RCP and eviction for accomplishing the above purpose cannot be permitted since the same will result in prejudice to the tenant who was never called upon to defend such a claim. 5. By way of reply Sri.Bechu Kurian Thomas would submit that the finding of the learned Appellate Authority that there is inconsistency between the purpose pleaded in the RCP and the purpose spoken to by PW1 is the result of an erroneous appreciation of the oral evidence. He drew our attention to Annexure A1 and A2 produced by the appellant along with IA. No. 3259 of 2009 which are two photographs showing the picture of the larger building of which the petition schedule premises are a part and RCR.99/09 - 13 - particularly the petition schedule premises. He also placed before us a rough sketch of the petition schedule premises, the larger building of which the same is a part and the relative positions of the roads which the building abut. He submitted that the area reserved for the capsule lift does not occupy any interior space of the petition schedule room and is not going to encroach upon any part of the room which is sought to be evicted. The proposed lift will be outside the petition schedule building though through the side of the petition schedule building which is situated in the ground floor of the larger building. The learned counsel submitted that the petition schedule premises has three small shutters but the board displaying the name of the business carried on by the tenant has been installed encroaching on to the outer area on the left side. It is in that outer area where along the entire height of the larger building there is a very convenient niche for accommodating capsule lift, that the capsule lift is proposed to be installed. RCR.99/09 - 14 - 6. We have very anxiously considered the rival submissions addressed at the Bar. Since we felt that annexures A1 and A2, the genuineness of which are not in dispute, will be of help to us in resolving the controversy as to whether the proposed capsule lift is going to be installed by utilising a portion of the petition schedule building we allowed IA. No. 3259/09. In fact, IA. No. 3259/09 was filed by the revision petitioner in response to an oral direction issued by us for production of photographs so as to enable us to appreciate the issue in an objective manner. We are convinced on a perusal of the photographs and also on perusal of the rough sketch which was placed before us during the course of arguments (the sketch tallies with annexures A1 and A2) that the proposal for installing the capsule lift if at all is to install the same outside the petition schedule building and at the area of the corner of the larger building which appears to be a convenient niche for accommodating such a lift. RCR.99/09 - 15 - 7. The purpose projected in Ext.B1 notice, Ext.A4 notice, the rent control petition and also in the affidavit sworn to by PW1 in lieu of his chief examination is the purpose of starting a computer centre. It is in cross- examination that PW1 mentions about the proposal to install capsule lift. In fact that part of PW1's cross examination is extracted by the learned Appellate Authority towards the end of paragraph 10 of its judgment. Translated to English the above portion of the cross-examination of PW1 is as follows: “What we intend by saying computer centre is the conduct of a training centre for those who come out successful in library science etc. There is intention to construct a capsule lift also for accessing the 4th floor. The corner of the petition schedule building is suggested for constructing the capsule lift.” Once the above evidence is appreciated in the light of annexures A1 and A2 it will be seen that the corner referred to by PW1 in his cross-examination is not the corner inside the petition schedule building, but is the common corner of the entire larger building which by all RCR.99/09 - 16 - appearances is a convenient niche for accommodating a capsule lift. If annexures A1 and A2 were before the Rent Control Appellate Authority there would not have been any room for confusion as to where the lift is proposed to be installed. Even otherwise, we are of the view that it was not proper on the part of the Appellate Authority to have appreciated the oral evidence of PW1 in the manner done. Oral evidence of PW1 and for that matter any witness is to be appreciated as a whole. When that is done it will not be difficult to understand that PW1's version was only regarding accomplishment of the landlord's idea of installing a capsule lift also for which removal of the fairly large name board presently exhibited by the tenant on the schedule premises in a manner encroaching into the outside corner is necessary. We are therefore of the view that the finding of the learned Appellate Authority that there is inconsistency between the need projected and the need spoken to is highly improper. RCR.99/09 - 17 - 8. It was appreciating the evidence adduced by the parties that the Rent Control Court, the trial court which had the advantage of seeing the witnesses and recording their testimonies, concluded that the need projected in the RCP stood established by the evidence available on record. The main reason on which the Appellate Authority interfered with the above finding is the reason of inconsistency between the need projected and the need spoken to in evidence. We have already found that the above reason is not a correct one. We are of the view that the other reasons which weighed with the learned Appellate Authority for holding that the need is not bona fide are also not satisfactory. According to the Appellate Authority, PW-1 was no longer the secretary of the landlord library and was no more competent to swear to the alleged need of the library. The above view of the Appellate Authority is too technical to receive acceptance. It was during the PW1's regime as secretary that the decision was taken by the RCR.99/09 - 18 - library to evict the tenant for accomplishing the need projected in the RCP. The tenor of the various questions asked to PW1 will show that the tenant did not have any serious challenge regarding PW1's acquaintance with the affairs and management of the library as a very active member of the library. In other words, PW1's competence as a witness for the library was not seriously challenged. The other two reasons mentioned by the learned Appellate Authority is that an extensive premises (1600 to 1800 sq. ft.) obviously occupied by a tenant textile fair is presently being occupied by Plaza Jewellery with the consent of the landlord and that the library does not come forward with an explanation as to why another premises on Sastri Road where a Magistrate Court was previously functioning cannot be utilised for the proposed purpose. As for the premises presently occupied by Plaza Jewellery in our opinion, the explanation by the landlord that the landlord never came to have occupation of those premises and that the former RCR.99/09 - 19 - tenant textile fair themselves inducted Plaza Jewellery and that the landlord became obliged to attorn with Plaza Jewellery is a plausible one. Moreover, we find considerable merit in the submission of the learned counsel for the revision petitioner that both Plaza Jewellery building as well as the premises on Sastri Road where the Magistrate Court was previously functioning are very extensive premises not necessary for the conduct of the proposed computer centre which the library presently intends to start in a relatively smaller premises. We are of the view that the law allows certain amount of latitude to the landlord in the matter of choice of premises for accomplishing its needs. It is not for the tenant to dictate as to where among the several places owned by the landlord, the landlord shall start the proposed computer centre. 9. It appears to us that the learned Appellate Authority missed the distinction between the statutory scheme for eviction under subsection (3) of Section 11 and under RCR.99/09 - 20 - subsection (7) of Section 11. In the instant case, the status of the landlord library, one of the largest and ancient most in the State, an institution registered under Act 12 of 1995 as a public institution envisaged by subsection (7) of Section 11 is not in dispute. Eviction ground specifically invoked in the RCP is one under subsection (7) of Section 11. A Division Bench of this Court in Social Service Guild of Assissi Sisters v. Ouseph Chacko, 2009(2) KLT 199 to which one among us (PCK, J) was party, had occasion to deal with the relative standards for determining the bonafides for claims under Section 11(7) and (3) and 11(8). The Bench held at paragraph 10 of the order as follows: “It is now trite by judgments of Division Bench of this court in Pakran v. Kunhiraman Nambiar (2004 (1) KLT 824) and in K.T.Thomas v. P.Sreedhara Varma (2007 (4) KLT SN 58 (C.No.64) = 2008(1)KLJ 125) that the standards to decide the bona fides of a claim under S. 11(3) and that of a requirement of additional accommodation coming under S. 11(8) are different, the former being more rigorous than the later. According to us, the same principle can be invoked to petitions under S. 11(7) and it can be safely held that the standards for deciding the bona fides of a claims under S. 11(7) are not so rigorous as the standards for RCR.99/09 - 21 - deciding the bona fides of a claim under S. 11(3). In fact we are of the considered view that the standards for deciding the bona fides of a claim under sub-s. (7) of S. 11 are even more liberal than the standards for deciding the bona fides of claims under sub-s. (8) of S. 11. This is because unlike claims under sub-ss. (3) and (8) of S. 11, where a private need of the landlord is being recognised by the Court, in a claim under sub-s. (7) of S. 11, the need which is given recognition and accepted as a ground for evicting the tenant, will have certain elements of interest of the public or a section of the public since the accomplishment of the need will be beneficial not only to the landlord but also to the entire public who are beneficiaries of the activities of the institution.” We will immediately note in this context that the submission of Mr.Bechu Kurian Thomas that the landlord library the Kottayam Public Library has been rendering very useful service to the public inhibiting the Kottayam Town and its outskirts for several decades now and that the credibility and reputation of the institution has never been questioned by anybody concerned including the statutory authorities like State Library Council was not disputed at the Bar. 10. We have no doubt that when the standards necessary for a claim under sub-section (7) of Section 11 RCR.99/09 - 22 - are applied it will have to be found that the learned Appellate Authority's interference with the decision of the Rent Control Court was unwarranted. As for the protection under 2nd proviso to Section 11(3), the finding that the