IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 28TH DAY OF JULY 2010/6TH SRAVANA 1932 RCRev..No. 210 of 2004 ( ) ------------------------------------ RCA.5/2002 of I ADDL.DISTRICT COURT, (RENT CONTROL APPELLATE AUTHORITY) PALAKKAD. RCP.8/1984 of ADDL.MUNSIFF COURT, (RENT CONTROL COURT) PALAKKAD. ........ REVISION PETITIONER(S)/RESPONDENTS/PETITION: --------------------------------------------------------------------------- 1. KALMANDAPAM MASJIDUL MUJAHIDIN COMMITEE, REP. BY ITS PRESIDENT, M.A.MOHAMMED ALI, JINNA S/O.O.M.ABDUL RAHIMAN, R/A.16/30, NEHRU COLONY KUNNATHURMEDU, PALAKAD. 2. KALMANDAPAM MASJIDUL MUJAHIDDIN COMMITTEE REP. BY ITS SECRETARY P.K.MOIDEEN, S/O.P.K.KUNHIPPA R/A. AT 16/184(15), PRATHIBHA NAGAR L-II KUNNATHURMEDU P.O. PALAKKAD. BY ADVS.SRI.T.C.SURESH MENON SMT.M.R.VALSA SRI.SREEKANTH.K.R SMT.G.GEETHISHA RESPONDENT(S)/APPELLANT/RESPONDENT.: ------------------------------------------------------------------------ PARTHAN, S/O.KAMBAN, R/A. AT 15/94, KUNNATHURMEDU, KUNNANUR AMSOM, PALAKKAD TALUK. BY ADV. SRI.KRISHNAPRASAD THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 28-07-2010, ALONG WITH RCR. 219/2004, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ---------------------------------- R.C.R. Nos.210 & 219 of 2004 ---------------------------------- Dated this the 28th day of July, 2010 O R D E R ---------------- Abdul Rehim,J. These revision petitions are filed by the landlord, “Kalmandapam Masjidul Mujahidin Committee”, which sought eviction of the two tenants occupying the schedule rooms, which form part of a line building having 5 rooms altogether. Originally, the Rent Control Petitions were filed against all the 5 tenants. It is submitted that the remaining 3 rooms were already surrendered possession. Eviction was sought for in these cases under Sections 11(2)(b), 11(3) and 11(7) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short the Act). It was pleaded that the petitioner is a religious and charitable institution and the building as a whole is needed for starting an Arabic College with Hostel facility. Eviction was also sought for on the ground RCR.210//04 & 219/04 2 of arrears of rent. But since the eviction order Section 11 (2)(b) was already vacated on payment of arrears of rent, that issue is not germine for consideration. 2. The claim for eviction under Section 11(3) and 11(7) were resisted by the tenants contending that the landlord is not a public religious charitable institution and hence not entitled to the benefit of Section 11(7). It was contended that the need put forth is not genuine since the landlord can start such an institution by constructing a building in the vacant land lying adjacent to the petition schedule building, which is having an extent of about 1½ Acres. The petition schedule building is not at all suitable for the need projected, is the contention. The tenants have also claimed protection under the second proviso to Section 11(3) on the ground that income derived from the schedule building is the sole means of their livelihood and that no other suitable building is available in the locality to shift their business. 3. At the first instance, the Rent Control Court disallowed claim for eviction under Section 11(7). It is RCR.210//04 & 219/04 3 evident that the landlord has not pressed for eviction on the ground under Section 11(3). In appeal filed by the landlord, the Appellate Authority found that the landlord is a public institution coming within the purview of Section 11(7) and therefore ordered eviction, finding that the need urged is bonafide. The tenants have taken up the matter in revision before this court in CRP.Nos.1703/1992 and 1526/1992. This court observed that Section 11(7) of the Act enables only a public religious, charitable, educational or other institutions to seek eviction if the building is needed for own purpose. Relying on the decision of a Division Bench of this court in Rev: Mother General Vs. Philip (1964 KLT 1092) it is observed that the landlord should plead and establish that it is a public religious institution or a public charitable institution or a public educational institution or any other public institution, in order to invoke Section 11(7) of the Act. It was found that eventhough the landlord in this case has pleaded that it is a religious and charitable institution and is a Society registered under the Societies Registration Act, there is no RCR.210//04 & 219/04 4 pleading to the effect that the same is a public institution. Hence the finding rendered by the Appellate Authority was vacated and the matter was remanded for fresh decision of the Rent Control Court, with directions to afford opportunity to the parties to amend their pleadings and to adduce further evidence in respect of the claims under Sections 11(3) and 11(7) of the Act. 4. Evidence before the Rent Control Court consisted of oral testimony of PW1 to PW4 and documentary evidence of Exts.A1 to A71 marked from the side of the landlord. There is oral evidence of RW1 to RW5 and Exts.B1 to B9(a) marked on the side of the tenants. The Advocate Commissioner was examined as CW1. Ext.X1 is marked as a Court Exhibit produced by the witness. 5. The Rent Control Court on an elaborate consideration of the entire evidence on record found that the landlord is a public religious institution which is entitled to get eviction under Section 11(7). It is also found that the need for which eviction was sought for is genuine and bonafide. It is further found that both the RCR.210//04 & 219/04 5 tenants are not entitled for protection under second proviso to Section 11(3). 6. The tenants filed appeals. The Rent Control Appellate Authority had reversed the findings through a common judgment, observing that there is no sufficient pleadings and evidence adduced to prove that the need for own occupation of the building for the purpose of starting an Arabic College with Hostel facility is genuine and bonafide. Incidentally, the Appellate Authority had confirmed the finding that the tenants are not entitled for the protection under the second proviso to Section 11(3). The present revision petitions are instituted against the common judgment of the Appellate Authority. 7. Heard; Sri. V.Chitambaresh, Senior counsel appearing for the revision petitioner/landlord and Sri. D.Krishnaprasad, learned counsel appearing for the respondent tenant. 8. The appellate authority found that there are no sufficient pleadings regarding the need projected. It is observed that in order to ascertain the malafides or RCR.210//04 & 219/04 6 oblique motives on the part of the landlord it is necessary to go into the pleadings in the petition with respect to the need put forth. According to the appellate authority, the revision petitioner/landlord had failed to mention whether any statutory permission is required for starting the Arabic College with Hostel facility. Whether any specifications are insisted by any statutory authorities for starting the Arabic College with Hostel facility and whether such specifications are complied with, is not mentioned in the petition. It is found that the statutory requirements if any, should have been pleaded in the petition itself so as to make it within the knowledge of the tenants and to convey the actual intention of the landlord so as to enable the tenants to contest the need put forth by the landlord, otherwise it will cause prejudice to the interest of the tenant. No details like number of students, number of batches to be commenced or intended to be commenced, was pleaded. Conclusion was that the need put forth has not been clearly pleaded and disclosed. The pleadings raised has not conveyed the actual or real intention of the RCR.210//04 & 219/04 7 landlord and therefore the tenant has been put to prejudice and prevented from properly contesting on the aspect of genuineness of the need, is the finding. In order to come under the purview of Section 11 (3) some more details were required to be pleaded with respect to specification, statutory permissions, etc., is the observation. However, the appellate authority found that after remand of the matter the revision petition had incorporated the word “public” in the petition and the eviction application has already been brought under the purview of Section 11 (7). But the appellate authority found that since the petitioner had failed in establishing bonafides of the need projected, they are not entitled to get eviction under Section 11 (7). 9. Sri. V. Chitambaresh, learned Senior counsel had drawn our attention to various decision of this court, settling judicial precedents with respect to eviction under Section 11 (7). In Thankamma V. Vaikom Town Juma Masjid Mahal Sangam (1987 (2) KLT 780) a learned Judge of this court observed that, if a public institution is RCR.210//04 & 219/04 8 of the kind mentioned in Section 11 (7) applies for eviction on the ground that it need the building for the purposes of the institution, his application is not liable to be rejected merely because sub Section (7) of Section 11 is not mentioned in the application. Nor it could be rejected merely on account of making a mention of sub section (3) of Section 11. It is further observed that bonafide need of such public institution coming under sub section (7) is given supereminence. Other considerations enumerated in the four provisos in sub section (3). should surrender to the need of a public institution. That must be the rationale behind the legislative exercise in making the distinction. In Sree Narayana Dharmasabha V. Sathiapalan (2004 (2) KLT 373) speaking for Division Bench, one among us (PCK (J)) observed that, the legislative policy enacting various provisions such as first proviso to sub section (1) of Section 11 and sub section (7) of Section 11 has been to liberate buildings in which there is more public interest than private, from the shackles of the rent control legislation which actually makes inroads into the RCR.210//04 & 219/04 9 landlords rights of evicting his tenants in accordance with the contract of tenancy. The policy underlying Section 11 (7) is to protect and encourage institutions functioning for public good. Referring to various decision of the hon'ble Supreme Court the distinction between Section 11 (3) and 11 (7) was well enumerated. 10. In a recent decision rendered by us in Social Service Guild of Assissi Sisters V. Ouseph Chacko (2009 (2) KLT 199) it is held that, if the landlord's claim that they are religious, charitable and public institutions is correct, there is no necessity for them to invoke sub section (3) of Section 11 along with sub section (7) of Section 11. These two sub-sections offer independent grounds for eviction and if the landlord is a religious, charitable, educational or other public institution and the need projected is that the building is required for the purpose of the institution, the apposite ground to be invoked is sub section (7). Unlike sub section (3), the word “bonafide” is absent in sub section (7). But is necessary to establish bonafides of the claim in sub section (7) like in RCR.210//04 & 219/04 10 sub section (8) it is qualified by sub section (10). But the standards to decide the bonafides of a claim is different under sub section (3). The standard is more rigorous than the later. It is more liberal than the standards for deciding bonafides of the claim under sub section (8). This is because unlike claims under sub sections (3) or (8), where a private need of the landlord recognised by the court, in a claim under sub sections (7) of Section 11 the need which is given recognition and accepted as a ground 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. 11. In the case at hand, specific pleading of the landlord is that the building in question is needed for starting an Arabic college with Hostel facility. We had occasion to peruse evidence of PW1 examined before the Rent Control Court. The elaborations contained in the evidence will reveal that specific decision has already been RCR.210//04 & 219/04 11 taken for establishment of an Arabic college. The procedure with respect to starting of the course and granting of the Degree etc are enumerated in the evidence. Under the above mentioned circumstances, we are of the opinion that lack of pleadings enumerated by the appellate authority is of no consequence, considering the standards required for deciding bonafides of claim under Section 11 (7), which is not so regress. We are of the firm opinion that the revision petitioner was successful in establishing a bonafide need for seeking eviction. It is pertinent to note that the appellate authority has already found that the tenants were not successful in proving the benefit of second proviso to Section 11 (3). Therefore, we hold that the order of the appellate authority is liable to be reversed and the order of the Rent Control Court granting eviction is to be confirmed. Hence the Rent Control Revision is liable to be allowed and we hold so. 12. However, Sri. D. Krishnaprasad, learned counsel appearing for the respondents/tenants in both these cases made an appeal that the tenants are continuing business in RCR.210//04 & 219/04 12 the schedule premises since the last so many years and that both of them are considerably aged. Hence it was requested that time of one year be granted for surrendering vacant possession of the schedule premises. The prayer is stiffly opposed by the Senior counsel Sri.Chitambaresh. Having considered totality of the circumstances attendant in these revision petitions, we are not inclined to grant time for a period of one year. However, we are inclined to allow time till 31.3.2011 for the tenants to vacate the premises. Therefore these revision petitions are disposed of on the following terms. 13. While granting eviction under Section 11(7) of the Act, the respondents/tenants are granted time till 31.3.2011 for surrendering vacant and peaceful possession of the premises to the revision petitioner/landlord, subject to the following conditions: (i). The tenants will file separate affidavits before the Rent Control Court within a period of three weeks from today undertaking to surrender vacant possession of the premises RCR.210//04 & 219/04 13 on or before 31.3.2011 and also undertaking that arrears of rent if any due will be paid within a period of one month from today. Through the very same affidavit it will be further undertaken that occupational charges at the rate of monthly rent prevailing will be paid without any default till the date of surrender of the schedule premises. If the filing of the affidavits and payment of arrears of rent and occupational charges as directed above is noticed by the Rent Control Court, the order of eviction shall not be executed till 31-03-2011. Sd/- PIUS C. KURIAKOSE, JUDGE. Sd/- C.K. ABDUL REHIM, JUDGE. okb True copy P.A to Judge