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 2ND DECEMBER 2009 / 11TH AGRAHAYANA 1931 RCRev..No. 185 of 2004(H) ------------------------- RCA.3/1998 of RENT CONTROL APPELLATE AUTHROITY, KOTTAYAM RCP.2/1995 OF THE RENT CONTROL COURT, KOTTAYAM .................... PETITIONER-RESPONDENT-CR.PETITIONER ------------------------------------------------------- K.A.ABDULKHADER, TENANT BUILDING NO.418/XV IN WARD XV, KOTTAYAM MUNICIPALITY, KOTTAYAM. BY ADV. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. RESPONDENT(S): ADDL.APPELLANTS 2 TO 4 PETITIONERS ------------------------------------------------- 1. GEORGE.M.THOMAS, KALLOOPARAMBIL THOPPIL HOUSE, PALLOM KARA, NATTAKOM. 2. SUSAN THOMAS, KOVILAKATH, NEAR T.B., KOZHENCHERRY P.O., PATHANAMTHITTA. 3. DR.MATHEW PHILIP, DO. DO. ADV. SRI.BECHU KURIAN THOMAS FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 02/12/2009, ALONG WITH RCR NO. 278 OF 2004 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A. NO.1639/2004 IN R.C.R.NO.185/2004 DISMISSED. 2/12/2009 SD/- PIUS C.KURIAKOSE, JUDGE. SD/- K.SURENDRA MOHAN, JUDGE. /TRUE COPY/ P.A. TO JUDGE. PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------ R.C.R.Nos. 185 & 278 2004 ------------------------ Dated this the 2nd day of December, 2009 O R D E R Pius C.Kuriakose, J. Under challenge in these revision petitions filed by the tenants is an order of eviction passed against them by the Rent Control Appellate Authority on the ground of requirement of reconstruction under clause (iv) of Sub Section (4) of Section 11. The building is admittedly situated in a commercially very important area of the Kottayam Municipal Town i.e., near to the Thirunakkara temple and not away from the Kottayam Boat Jetty, KSRTC Bus Station and such other institutions and establishments at Kottayam. The Appellate Authority became convinced on the basis of Ext.C1 report submitted by an Advocate Commissioner after a local inspection that the petition schedule buildings, which are portions of a larger building situated on a plot having an extent of 32 cents, are in a dilapidated condition warranting reconstruction. It was also RCR.Nos.185/2004 & another. 2 found on the basis of the evidence that the landlords are currently possessed of a valid plan and licence for carrying out the reconstruction as proposed by them. It was found that apart from 32 cent plot, on which the petition schedule building is situated the landlords own extensive landed property not only in Kerala but even outside the State. Thus the Appellate Authority became convinced that the landlords had wherewithal to carry out the reconstruction proposed by them. It was accordingly that the order of eviction was passed directing the respondents/landlords to carry out reconstruction within a time frame and to re-induct the revision petitioners into the reconstructed building subject to their liability to pay fair rent. It is challenging the above order of eviction that these revision petitions have been filed by the tenants. 2. We have heard the submissions of Sri.Mathew John, learned counsel for the revision petitioner in R.C.R. No. 185/2004, and Sri.Alex M.Sacria, learned counsel for the revision petitioner in R.C.R. No.278/2004. The learned counsel addressed arguments on the basis of the grounds raised in the revision petitions. The learned counsel submitted that the bona RCR.Nos.185/2004 & another. 3 fides of the need as well as the ability of the landlords to carry out the reconstructions was not established in these cases by cogent and responsible evidence. According to him, PW1 was only a power of attorney holder and no documentary evidence to prove that the respondents/landlords are having actual cash or even immovable properties as claimed by them was produced. Sri.Mathew John would submit that a new scheme has been notified under the Town Planning Act for Kottayam Municipal Town. According to him, as per that scheme, there is a proposal to widen the road that passes by the petition schedule building and if that scheme is implemented, the respondents will not be permitted to carry out the reconstruction. 3. All the submissions of the learned counsel for the revision petitioners were resisted by Sri.Bechu Kurian Thomas, learned counsel for the respondents, who supported the impugned common judgment on the basis of the various reasons stated therein. According to him, the revision petitioners need not have any legitimate grievance regarding the impugned judgment since practically it is only an order of temporary eviction, which is passed against them and they are going to be inducted into a RCR.Nos.185/2004 & another. 4 new building subject to their liability to pay fair rent. 4. We have very anxiously considered the rival submissions. We have scanned the judgment of the Rent Control Appellate Authority, which under the statutory scheme is the final court on facts. According to us, findings necessary for passing order of eviction on the ground of reconstruction under Section 11 have been entered by the Appellate Authority and all such findings are founded on evidence which is actually available on record. It is trite by various decisions of this court that bona fides of a need for reconstruction under Section 11(4)(iv), unlike the need under Section 11(3), is something which can be demonstrated and proved by circumstances such as physical and social conditions of the building, availability of valid plan and licence with the landlord and financial capacity of the landlord to carry out reconstruction and the profitability of the proposal. It is not necessary that the landlord himself should mount the box to prove this aspect. In the instant case, PW1 himself is one of the legal heirs of the original landlord and hence a co-sharer of the building in question. According to us, the court below was certainly justified in relying on evidence of PW1 and finding that RCR.Nos.185/2004 & another. 5 a case for eviction is made out under Section 11(4) (iv). The court below has set a time frame for carrying out the reconstruction and the court below has also issued necessary directions for re-inducting the tenants once the new building is constructed. In this jurisdiction under Section 20, this court is not expected ordinarily to reappraise the facts and substitute our conclusions on facts for the conclusions arrived at by the Statutory Authorities especially when those conclusions are founded on evidence. There is no warrant for invocation of the revisional jurisdiction for correcting well reasoned and well settled judgment of the Appellate Authority. As for the apprehension voiced by Sri.Mathew John, we are of the view that appropriate directions can be issued, so that Execution Court will order delivery only after being convinced that the respondents are having valid current plan and licence for carrying out reconstruction proposed by them. 5. Result of the above discussion is that revision petitions fail and will stand dismissed. The respondents are directed to carry out the proposed reconstruction within one year of obtaining possession of the petition schedule building. The RCR.Nos.185/2004 & another. 6 Execution Court is directed to ensure before issuing delivery warrant to the Amin that the respondents are possessed of current plan and licence on the basis of which they will be able to carry out reconstructions. 6. Mr.Alex Scaria, counsel for the revision petitioner in RCR. No. 278 of 2004 submitted that the respondents are making all arrangements for disposing of the petition schedule premises and that they have no intention whatsoever to carry out the reconstruction. In view of the apprehension voiced by the learned counsel we restrain the respondents by an order of injunction from disposing of the petition schedule premises till such time as they carry out the proposed reconstruction and re- induct the revision petitioners into the reconstructed building. We also record the submission of Mr.Bechu Kurian Thomas that the respondents have no intention whatsoever to dispose of the premises and that their intention is to carry out the reconstruction as permitted under the impugned judgment. 7. In view of the request of the learned counsel for the revision petitioners for grant of reasonable time to surrender the petition schedule premises we further order that the execution RCR.Nos.185/2004 & another. 7 court, at any rate, will not order delivery of the petition schedule building till 30-4-2010 subject to the condition that within one month from today both the revision petitioners will file an affidavit before the execution court stating that subject to the directions and conditions incorporated in this judgment they will surrender possession of the buildings to the respondents on or before 30-4-2010. PIUS C.KURIAKOSE,JUDGE K.SURENDRA MOHAN, JUDGE dpk/ksv