IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 22ND OCTOBER 2010 / 30TH ASWINA 1932 RCRev..No. 4 of 2010() ---------------------- RCA.1/2007 OF THE RENT CONTROL APPELLATE AUTHORITY, ALAPPUZHA. RCOP.7/2003 OF THE RENT CONTROL COURT,ALAPPUZHA .................... REVISION PETITIONER/IST RESPONDENT/IST COUNTER PETITIONER: K.K.MONY,S/O.LATE KUTTAPPAN ACHARY, AGED 63,RESIDING AT KALLUPARAMBU VEEDU, KEEZHATHERUVU,MULLACKAL.P.O,ALAPPUZHA. BY ADV. SRI.R.AZAD BABU RESPONDENTS: APPELLANTS & RESPONDENTS 2 TO 10/ PETITIONERS & CR. PETITIONERS 2 TO 10: 1. JAYACHANDRA KUMAR,S/O.ARUJUNA KAMMATH, AGED 51,JAYARAM MANDIR,CHUNGOM WARD,ALAPPUZHA MURI MULLAKKAL VILLAGE,ALAPPUZHA. 2. JAYARAM KUMAR,S/O.ARJUNA KAMMATH, AGED 48,RESIDING AT -DO- 3. JAYADEVA KUMAR,S/O.ARJUNA KAMMATH, AGED 45,RESIDING AT -DO- 4. LELLAMBAL,D/O.LATE KUTTAPPAN ACHARY, AGED 63,RESIDING AT KALLUPARAMBU VEEDU, KEEZHATHERUVU,MULLACKAL.P.O,ALAPPUZHA. 5. RETNAMBAL,D/O.LATE KUTTAPPAN ACHARY, GED 58,RESIDING AT -DO- 6. RAJAMMAL,S/O.LATE KUTTAPPAN ACHARY, AGED 54,RESIDING AT -DO- 7. HARIDAS,S/O.LATE KUTTAPPAN ACHARY, AGED 54,RESIDING AT -DO- RCR 4/2010 2 8. RADHAMMAL,D/O.LATE KUTTAPPAN ACHARY, AGED 52,RESIDING AT -DO- 9. SEETHALAKSHMI AMMAL,D/O.LATE KUTTAPPAN ACHARY,AGED 50,RESIDING AT -DO-\ 10. GOPALAKRISHNAN,D/O.LATE KUTTAPPAN ACHARY AGED 48,RESIDING AT -DO- 11. BABY AMMAL,D/O.LATE KUTTAPPAN ACHARY, AGED 63,RESIDING AT -DO- 12. AMBIKA AMMAL,D/O.LATE KUTTAPPAN ACHARY, AGED 63, RESIDING AT -DO- THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 22.10.2010, ALONG WITH RCR NO. 33 OF 2010, THE COURT ON THE SAME DAY, PASSED THE FOLLOWING: PIUS C KURIAKOSE & P.S. GOPINATHAN, JJ. = = = = = = = = = = = = = = = = = = = = = = = = R.C.R. NOS. 4 OF 2010 & 33 OF 2010 = = = = = = = = = = = = = = = = DATED THIS, THE 22ND DAY OF OCTOBER, 2010. O R D E R Pius C. Kuriakose, J. Under challenge in these Rent Control Revisions is the judgment of the Additional Rent Control Appellate authority passing order of eviction against the revision petitioners/tenants for the first time under Section 11(3) of the Kerala Building (Lease & Rent Control) Act, 1965. The need projected by the landlords, who are brothers, is that after demolishing the existing building, they want to put up a new building and occupy the same for the purpose of conducting jewellery business, which is presently conducted by them in a rented building. The Rent Control Court appreciated the evidence which was adduced by the parties, consisting of Exts. A1 to A10 and the oral evidence of PW.1 and CWs 1 to 4 and came to the conclusion that the need projected by the landlords is not bona fide. Accordingly, the Rent Control Petition was dismissed. On appeal, the Appellate Authority made a re-appraisal of the evidence. The Appellate Authority noticed that the pleading of the landlords was that the existing building needs reconstruction and the landlords want to construct a new building in the place of the existing building and occupy the same. RCR Nos. 4 & 33/2010 2 Referring to the judgment of this Court in George Varghese v. Ammini Cherian (1995(2) KLT 763), the learned Appellate Authority would take the view that in such a fact situation, once it is found that the need projected by the landlords is bona fide, it is not at all necessary to consider the tenants' liability for eviction on the ground of Section 11(4)(iv). According to the Appellate Authority, nothing was brought out in the cross examination of PW.1 to doubt his credibility. That Authority would hold that in a situation where the landlord is conducting business in a tenanted building, the need of the landlord to conduct the business in his own building is to be presumed to be bona fide and in the absence of oblique motives, the same has to be upheld. In that view of the matter, the Appellate Authority held that the need is bona fide. The Appellate Authority examined the question whether the tenants are entitled to the protection under the second proviso to Section 11(3) of the Act and as regards that, the Appellate Authority held that the tenants are unsuccessful in showing that they are entitled to such protection. As a matter of fact, the Rent Control Court also had concluded that the tenants are not entitled for protection of the second proviso. The Appellate authority ordered eviction. RCR Nos. 4 & 33/2010 3 2. Having gone through the judgment of the Appellate Authority and the order of the Rent Control court and having considered the submissions made by Advocate Sri. R. Azad Babu, learned counsel for the revision petitioners and Sri. K.S. Hariharaputhran, learned counsel for the respondents and having applied our mind to those items of evidence to which our attention was drawn by the counsel, we are of the view that the finding by the Appellate Authority that the need projected by the landlord is bona fide and the concurrent finding by the two authorities that the tenants are entitled to the protection under the second proviso to Section 11(3) do not suffer from any infirmity. But we notice another crucial aspect of the matter. PW.1, in his evidence, clearly deposed that the proposed jewellery business is to be conducted in an area of 2500 Sq. feet. Ext.A4 plan clearly shows that in the ground floor of the proposed building more than 2,900 Sq. feet area is available. Therefore, according to us, this is a case where even after satisfying the need of the landlords for conducting the business in the proposed new building, there will be enough space available for accommodating the revision petitioners. In short, this is a case were it was obligatory on the part of the landlords to have invoked the ground under Section 11(4)(iv) of the Act also. It appears to us on a cursory glance of the RCR Nos. 4 & 33/2010 4 materials that the statutory pre-conditions for passing an eviction order under Section 11(4)(iv) are satisfied; but as the statutory authorities have not examined the scope of passing order of eviction under Section 11(4)(iv) specifically, we feel that the matter should be sent back to the Rent Control Court to consider the questions regarding the social and physical condition of the building, age of the building, the financial ability of the landlord and also the availability of the requisite plan. 3. We notice yet another aspect of the matter. The petition schedule buildings are situated very close to Mullackal junction which is a very important commercial area in Alappuzha Municipal Town. The monthly rent of Rs. 30/- each paid by the revision petitioners is ridiculously low. By any standard, it appears to us that the fair rent of the building will not be less than Rs. 1,500/-. We, therefore, are inclined to tentatively fix the rent payable by the revision petitioners at Rs. 1,500/- per month. In the result, the Rent Control Petitions are remitted back to the Rent Control Court for a fresh consideration of the matter in accordance with law. The Rent Control Court shall consider the questions regarding the social and physical condition of the building, the age of the building, the financial ability of the landlord for reconstruction and also the availability RCR Nos. 4 & 33/2010 5 of the requisite plan. It is open to the respondents to convince the Rent Control Court that Ext.A4 is a valid plan and that same will enable the revision petitioners to have allotment of space in the newly constructed building in terms of the third proviso to Section 11(4)(iv) of the Act. PIUS C KURIAKOSE, (JUDGE) P.S. GOPINATHAN, (JUDGE) knc/-