IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C. K. ABDUL REHIM TUESDAY, THE 24TH NOVEMBER 2009 / 3RD AGRAHAYANA 1931 RCRev..No. 342 of 2006() ------------------------ RCA.37/2004 OF RENT CONTROL APPELLATE AUTHORITY, THALASSERY RCP.310/2002 OF RENT CONTROL COURT, KANNUR .................... REVISION PETITIONER/RESPONDENT/PETITIONER ------------------------------------------------------------- THAVAKKARA KOOLATH VALAPPIL SREEDHARAN, S/O.LATE ACHUTHAN, AGED 72 YEARS, BUSINESS, RESIDING AT HASEENA QUARTERS, KASANAKOTTA, P.O.THANA, KANNUR. BY ADV. SRI.M.K.SUMOD SRI.KAUSER EDAPPAGATH RESPONDENT(S): APPELLANTS ------------------------- 1. CHALAKKADAN KODICHI NALINI, D/O.MADHAVI, RESIDING AT ARIKKOTHAN HOUSE, MUZHATHADAM WARD, KANNUR. 2. RAGHAVAN, S/O.MADHAVI, RESIDING AT DO. DO., 3. PURUSHOTHAMAN, S/O.MADHAVI, RESIDING AT DO. DO., 4. SREEDHARAN, S/O.MADHAVI, RESIDING AT DO. DO., ADDL.R5: CHALAKKADAN KODICHI LEELA D/O MADHAVI, NOW RESIDING AT ARIKODAN HOUSE, MUZHATHADAN WARD, KANNUR IS IMPLEADED AS SUPPLEMENTAL RESPONDENTS NO.5 AS PER ORDER DQTED 29-5-2007 ON IA. 1102/07. ADV. SRI.V.RAMKUMAR NAMBIAR FOR R1TO3 SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL FOR R5 SRI.K.V.PAVITHRAN FOR R4 & R5 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 04/03/2009, THE COURT ON 24-11-2009 PASSED THE FOLLOWING: PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ. -------------------------------------------------------- RCR. No. 342 of 2006 ------------------------------------------- Dated this the 24th day of November, 2009 O R D E R Pius C. Kuriakose, J. A tenant who was evicted from the subject building in execution of an order of eviction passed by the authorities under the Rent Control Act and confirmed by this Court and the Supreme Court on the ground of own occupation under sub-section (3) of Section 11 is in revision. He filed fresh rent control petition invoking sub-section (12) of Section 11 alleging that the landlord had not occupied the building for the need projected in the eviction petition. The need alleged in the eviction petition was that possession of the building is needed bona fide, so that the second respondent in the present revision who was the second petitioner in the eviction petition can occupy the building for the conduct of a tutorial college. The revision petitioner alleges that after getting vacant possession, the second respondent never RCR. No. 342/06 - 2 - occupied the building at all. On the other hand, the building was let out to certain gypsies. According to the revision petitioner the landlord never had any genuine intention of conducting tutorial college in the subject building. The non-occupation of the subject building after getting possession was without any reasonable cause. Hence the petition under sub-section (12) of Section 11 seeking re-delivery of the petition schedule building to the revision petitioner was filed by the evicted tenant. 2. The petition was resisted by the respondents. They contended that as soon as the building was got vacated the respondents started the tutorial college. But the condition of the building was highly dilapidated due to negligent user by the revision petitioner. In fact, at the time when delivery was taken, only a small portion of the building was habitable. Therefore parents of students were not prepared RCR. No. 342/06 - 3 - to send their children for the classes conducted in the building. Second respondent therefore became compelled to stop the tutorial college. The condition of the building was such that reconstruction was found absolutely necessary. Therefore the respondents started demolishing the building for the purpose of starting reconstruction. Except two rooms, all other portions of the building were demolished. At that juncture, the revision petitioner filed a suit for injunction and got an interim order of injunction restraining the demolition and reconstruction. Thus it was contended that the non-occupation of the building after obtaining eviction was due to reasonable and genuine causes. The existing structure is of temporary nature and hence the revision petitioner is not entitled to get order of re-possession. 3. The petition was enquired into by the Rent Control RCR. No. 342/06 - 4 - Court. Evidence consisted of the testimonies of PW1 and RW1 and Ext. A1. A commission was taken out and the commissioner's report was marked as Ext.C1 and the plan submitted by him was marked as Ext.C2. The Rent Control Court on evaluating the evidence found that the respondent landlords failed to occupy the building within one month of the date of eviction and that said non-occupation was without reasonable cause. The Rent Control Court allowed the petition. The landlords preferred appeal to the Appellate Authority. The Appellate Authority under the judgment which is impugned in this revision allowed the appeal and dismissed the petition under sub-section (12) of Section 11. 4. We heard Sri.Kauser Edappagath, learned counsel for the revision petitioner and those of Advocate Sri.V.Ramkumar Nambiar for R1 to R3 and Sri.K.V.Pavithran, Advocate for R4 and R5. Sri.Kauser RCR. No. 342/06 - 5 - argued that it was without adverting to material pieces of evidence and by appreciating the evidence in an indifferent manner that the Appellate Authority interfered with the decision taken by the Rent Control Court. Learned counsel submitted that the landlord failed to occupy the petition schedule building within one month without any reasonable cause. Counsel pointed out that it was stated by RW1 landlady for whose need of conducting tutorial classes the building was got evicted that there are documents with her to prove that she had conducted tutorial classes from 10-7- 2002. But no such documents were produced. Therefore what the Appellate Authority should have done was to draw adverse inference against the landlady for the non- production of those documents. Learned counsel referred to Section 507 of the Kerala Municipalities Act and submitted that in terms of that Section, tutorial college can be RCR. No. 342/06 - 6 - established in a municipal area only after obtaining prior registration from the municipality. Admittedly, no such registration was obtained from the Kannur Municipality. This according to the learned counsel is a circumstance which disproves the case of the landlady that tutorial college was started in the petition schedule building on 10- 7-2002. Counsel submitted that there was no evidence to prove that the building was in such a dilapidated condition that the respondent became compelled to stop the tutorial college in the midway. Learned counsel submitted that the building in question was situated in a very important locality of Kannur Municipal Town and the case of the landlady that gypsies came to occupy the same without the knowledge of the landlords is highly improbable. It is in evidence that the building in question is not far away from the place of residence of the landlords and that unauthorised occupation RCR. No. 342/06 - 7 - by anybody in the building will be noticed by the landlords or the members of their family who pass by the building every day. Mr.Kauser submitted that the case of the landlady that the building was demolished for the purpose of paving way for reconstructing the same was also false. If as a matter of fact , there is a genuine proposal to reconstruct the building the respondents could have obtained an approved plan and a building permit. No such plan or building permit has been obtained and this again is a circumstance which disproves the landlady's case. All the courts in the country from the Rent Control Court to the Honourable Supreme Court have been taken for a ride by the respondents and hence the learned counsel requested that subsection (12) of Section 11 may be read in a meaningful manner and implemented effectively. Mr.Kauser submitted that the Appellate Authority failed to notice the RCR. No. 342/06 - 8 - difference between the words possession and occupation. The learned counsel referred to the various statutory provisions such as subsection (12) of Section 11, subsections (3) and (8) of Section 11, clause (iv) of subsection (4) of Section 11 and subsection (5) of Section 11. In order to expatiate his argument that possession and occupation are different, the learned counsel relied on the judgment of a Division Bench of this Court in Simon v. Rappai, 2008(3) KLT 121. For the same proposition the learned counsel relied on the bench decision of this Court in Kurian Thomas v. Sreedhara Menon, 2004(3) KLT 326. The learned counsel relied also on judgment of another Division Bench of this Court in Rajagopalan v. Gopalan, 2004(1) KLT Short Note 70 to which one among us (Pius C.Kuriakose(J) was a member. Sri.K.V.Pavithran, appearing for the contesting landlords would resist the submissions of RCR. No. 342/06 - 9 - Mr.Kauser on the various reasons stated in the judgment of the Appellate Authority. He drew our attention to Ext.C1 report and C2 plan as well as to the oral evidence given by PW1, the tenant. 5. We have considered the rival submissions addressed at the Bar. Since the findings of the authorities below are not concurrent, we have made a reappraisal of the evidence. 6. A reading of subsection (12) of Section 11 of Act 2 of 1965 will show that a tenant who was evicted from the building on the ground under subsection (3) of Section 11 will be entitled for repossession (i) if the landlord fails to occupy the building within 1 month without reasonable cause, or (ii) after occupying it within 1 month, vacates the building without reasonable cause within 6 months. In the instant case, the allegation of the tenant is that the landlady failed to occupy the building not even for a single day within RCR. No. 342/06 - 10 - one month of getting eviction. On the contrary, they let out the building to gypsies. The petition for repossession was filed on 21-11-2002. The commissioner conducted inspection on the very next day after giving notice to the petitioner as well as to the landlady. The commissioner found the building to be in a dilapidated condition and to be under the occupation of gypsies. The gypsies informed the commissioner on enquiry that they were in occupation of the big hall of the petition schedule building as well as the land surrounding the building for last two weeks and that they will be leaving the place within two weeks. It was found that the building consisted of a big hall and two small rooms. The commissioner found the entire roofing of the big hall in a damaged condition. It was also found that the roofing of the small two rooms were also damaged, but the same was seen covered by a thick tarpaulin sheet. The RCR. No. 342/06 - 11 - door frames and window frames were also found to be in damaged condition. The commissioner found some benches and desks in the two small rooms. But they were not seen arranged as in class rooms. No black board was noticed by the commissioner anywhere in the building. The two small rooms were full of cob webs and dust. It was clear that at the time of inspection by the commissioner no classes were being conducted in the petition schedule building. The landlady also would state that by that time she had stopped the tutorial college. The tenant's case regarding the presence of the gypsies was that the premises were let out to the gypsies by the landlady's husband; but the landlady would state that gypsies were in unauthorised occupation and that at the time when she was examined they had already left the place. The evidence of the tenant is that he had seen the gypsies talking to RW1's husband RCR. No. 342/06 - 12 - and that it is with the concurrence of RW's husband that gypsies occupied the building for more than two months. This was the basis on which the tenant argued before the Rent Control Court that gypsies' occupation was on the basis of lease of the building by the landlords or by RW1's husband. The Rent Control Court however, did not become inclined to accept the tenant's case that the premises were let out to the gypsies. According to that court, it is a matter of common knowledge that wandering gypsies make use of uninhabited and unoccupied premises for their temporary stay. Presence of the gypsies reported to by the commissioner was not attached much importance by that court. However, on appreciating the evidence adduced by the parties the Rent Control Court found that the landlady had not occupied the building within one month of the date of eviction. The court noticed that the definite case of the RCR. No. 342/06 - 13 - landlady in this context was that though the building was not in a good condition she had started tutorial classes from the two small rooms in the petition schedule building within one month. It was noticed by that court that in the counter filed by her she does not mention the date on which classes were started. But at the stage of evidence, she would say that she started classes on 10-7-2002. According to her, since the academic year had already started she started classes even without waiting for carrying out repairs to the building. She stated that she had 22 students who had failed in the SSLC examination. In cross examination she stated that she was keeping an attendance register. According to her, since the register got damaged she is not in a position to produce it. But she also stated that there were other documents to prove that she did start tutorial college on 10-7-2002. The Rent Control Court noticed that RCR. No. 342/06 - 14 - no such documents were produced by her despite her such statement. The court also noticed that no documents were produced by her to prove her case that she had applied to the municipality for licence. The Rent Control Court referred to Sections 506 and 507 of the Municipalities Act and found that prior registration with the municipal authorities is necessary for starting tutorial college within the area of municipality. The non-obtainment of registration was also highlighted by the Rent Control Court as a circumstance disproving the case of the landlady. The Rent Control Court also noticed that it was the case of RW1 in evidence that some of the students who were attending her classes in the petition schedule building are still coming to her for tuition at her residence. According to her, all these students come from within the area of Kannur Municipal Town. She stated further that the parents of these children were not prepared RCR. No. 342/06 - 15 - to send their children to classes considering the dilapidated condition of the building and it was because of this that she became compelled to stop the tutorial college. The court noticed that apart from herself, no other witnesses were examined and accordingly found that the version of RW1 that she had started tutorial college in the petition schedule building on 10-7-2002 cannot be accepted. The absence of a black board at the time of the commissioner's visit is also highlighted by the learned Rent Control Court. The presence of benches and desks, according to the learned court, was only part of the stage management done by the landlady in view of the commissioner's visit. 7. Even though the question as to whether the landlady vacated the premises within six months without reasonable cause did not arise for consideration in view of the finding of the Rent Control Court that the landlady never RCR. No. 342/06 - 16 - occupied the building the above question was also considered by the Rent Control Court. The court noticed that the version of the landlady was that she stopped the tutorial college on 10-11-2002. On the basis of the Commissioner's report based on the inspection on 22-11- 2002 the court found that the non-occupation was not a recent one but it relates to a very long period. The court has highlighted the presence of cob webs, huge quantity of dust etc. and found that it is very difficult to believe the version of the landlady that the college was stopped just 12 days prior to the inspection. The court also found it difficult to accept the landlady's case that it is due to the highly dilapidated condition of the building that she became compelled to stop the tutorial college. There is no evidence to show that after effecting delivery any portion of the building collapsed or got damaged further after the RCR. No. 342/06 - 17 - landlady occupied the building and started the tutorial college. The court noticed that if the landlady is to be believed, she started tutorial college in the middle of July, 2002 and continued the same till the month of August also. These months, the court noticed, are months of heavy rain. According to the court, if she could carry on classes during these months, it is difficult to accept her case that she became compelled to stop the classes in November when the climatic conditions are very favourable. Accordingly it was found that the landlady's case that she became compelled to vacate due to sufficient cause after occupying the building for one month cannot be accepted. The Rent Control Court also noticed that it was never the case of the landlady in the original proceedings that the building is to be pulled down and a new one is to be constructed. It was noticed that the demolition exercise was begun only after RCR. No. 342/06 - 18 - the present RCP for repossession was filed. The tenant filed an original suit seeking injunction against demolition. Temporary injunction was issued. The Rent Control Court found that no steps were taken by the landlady for keeping the building in a habitable condition. The court also noticed that no document was produced to prove the landlords' case that they have applied to the local authority for a building permit. On the basis of all these findings the Rent Control Court concluded that the intention of the landlord was clearly to circumvent the provisions of sub-section (12) of Section 11. Relying on the judgment of this Court in Saramma Punnen v. Varkey, 1983 KLT 898 the Rent Control Court found that the landlords were liable to be directed to rebuild the demolished portion of the building and to provide tiled roofing and then to restore possession of the building to its original condition and thereafter to re-induct the RCR. No. 342/06 - 19 - tenant into possession. 8. The Appellate Authority considered the appeal filed by the landlord. The Appellate Authority would rely on the Advocate Commissioner's report and hold that in the two small rooms in the building six wooden benches, six wooden desks, one wooden chair and one wooden table were found. Analysing the oral evidence adduced by PW1 and RW1 the Appellate Authority concluded that at the time of filing of the present RCP, the petition schedule building was in a dilapidated condition, evidently unfit for conducting tuition classes. The Appellate Authority would thus accept the evidence of RW1 the landlady that she started tuition classes in the two small rooms and continued the classes till 10-11-2002 but became forced to stop the classes because of the collapsible condition of the building. In this context the Appellate Authority took into account the evident RCR. No. 342/06 - 20 - position that during the period of 8 years during which the original rent control petition was pending the landlady was never permitted by the tenant to carry out the repairs or maintenance of the building and would thus indirectly hold that the tenant was responsible for the physical condition of the building at the time of delivery of the same to the landlady. The existence of furniture and a writing on the board exhibiting the name of the tutorial college are all relied on by the learned Appellate Authority to accept the landlady's version that she did occupy the building. After entering that finding, the learned Appellate Authority would refer to various judicial precedents such as 1992(2) KLT 1 (Chandran v. Addl. District Judge), 1983 KLT 898 (Saramma Punnen v. Varkey), 1981 KLT 708 (Thomas v. Kunju Thomman) pertaining to the scope of sub-section (12) of Section 11 and conclude that the landlady was justified in RCR. No. 342/06 - 21 - vacating the building before the expiry of six months. On the basis of the above findings the appeal was allowed and the RCP was dismissed. 9. We are unable to agree with the learned Appellate Authority. According to us, there was no warrant for interfering with the finding of the Rent Control Court that the landlady did not occupy the building within one month of taking delivery of the same through execution proceedings. It was in the evidence of RW1 that there are documents available with her for proving that she had conducted tutorial classes in the building after she took possesion of the building. But no documents whatsoever were produced by RW1. This was a circumstance on the basis of which the Rent Control Court rightly drew adverse inference against the landlady. There was no warrant in the evidence for not agreeing with the Rent Control Court. Section 506 of the RCR. No. 342/06 - 22 - Kerala Municipalities Act mandates that for starting a tutorial college prior registration from the local authority is necessary. The evidence of RW1 is that registration was applied for, but not obtained. Significantly, no documents which will prove that the landlady had applied for registration as she claims are produced or caused to be produced by the landlady. This again was a circumstance warranting drawal of adverse inference against the landlady. The landlady's oral evidence was to the effect that 22 local students who had failed in the SSLC Examination were attending the tutorial college started by her. She even stated that she is giving tuition to some of those students at her residence even now. Not even one such student is examined by her for proving that tutorial college was actually conducted by the landlady after she took delivery of the building from the tenant. So also, it is the landlady's RCR. No. 342/06 - 23 - version that she became compelled to close down the tutorial college because the parents of the students were not willing to send their children to the building in view of its dangerously dilapidated condition. If this were true, the landlady could have examined at least one parent for proving the same. It is true that a few pieces of benches and desks were seen in the building by the Advocate Commissioner, but significantly they were not seen arranged as in class rooms. The black board, an indispensable item in any class room was not found in the building at all. The inference of the learned Rent Control Court that the benches and desks full of dust and cob webs will not advance the case of the landlady that she conducted tutorial college in the building appears to us to be correct. It is ignoring the tell-tale circumstances noticed by the Rent Control Court and the adverse inferences rightly drawn by that Court that RCR. No. 342/06 - 24 - the Appellate Authority reversed the finding of that court and accepted the landlady's version that she conducted tutorial college for a short while after taking delivery of the building. We reverse the finding of the Appellate Authority and restore the finding of the Rent Control Court on the question as to whether the landlady occupied the petition schedule building for conduct of tutorial classes. 10. In view of the finding that the landlady did not occupy the building for conduct of tutorial college, the further question whether there was reasonable cause for her to discontinue the tutorial classes does not arise. Here also we are unable to agree with the Rent Control Appellate Authority. The Appellate Authority has accepted the landlady's version that in view of the dangerously dilapidated condition of the building she decided to reconstruct the building and started demolishing the RCR. No. 342/06 - 25 - building for the purpose of reconstruction and that she was unable