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 16TH FEBRUARY 2010 / 27TH MAGHA 1931 RCRev..No. 301 of 2009() ------------------------ RCA.27/2008 OF RENT CONTROL APPELLATE AUTHORITY, TRIVANDRUM RCP.59/2006 of RENT CONTROL COURT, TRIVANDRUM. .................... REVISION PETITIONER/APPELLANT/COUNTER PETITIONER -------------------------------------------------------------------- G.SASSI,MANAGING DIRECTOR,COMMANDER AGENCIES PRIVATE LTD.(ERSTWHILE COMMANDER COMMERCIAL AGENCIES)T.C.NO.15/1741,IST FLOOR (NORTHERN END)RAJKAIMAL BUILDING OPPOSITE TAGORE THEATER,VAZHUTHACAUD,THIRUVANANTHAPURAM. BY ADV. SRI.K.RAMACHANDRAN SRI.K.T.SHYAMKUMAR SRI.S.SREEDEV RESPONDENT(S): RESPONDENTS/PETITIONERS -------------------------------------- 1. MANI RAJ GOPAL,AGED 68 YEARS, W/O.LATE GOPAL AJITH,SASTHAMMANGALAM, THIRUVANANTHAPURAM. 2. RAJ KUMAR,AGD 48 YEARS, S/O.LATE RAJA GOPAL,RESIDING AT DO. DO. ADV. SRI.RAM MOHAN.G. FOR R1 SRI.G.P.SHINOD FOR R1 SRI.MANU V. FOR R1 THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 16/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & C.K. ABDUL REHIM, JJ. ------------------------------------------ RCR. No. 301 of 2009 ------------------------------------------- Dated this the 16th day of February, 2010 O R D E R Pius C. Kuriakose, J. Under challenge in this revision filed under section 20 of Act 2 of 1965 is order of eviction passed against the petitioner/tenant by the Rent Control Court and the Rent Control Appellate Authority concurrently on the ground of requirement of reconstruction under clause (iv) of subsection (4) of Section 11 of Act 2 of 1965. The bonafides of the need for reconstruction and the landlord's averment regarding condition of the building as warranting reconstruction were stiffly disputed by the tenant. The tenant contended that the need is projected only as a ruse for getting eviction. The Rent Control Court enquired into the matter and at trial the evidence consisted of Exts.A1 to A12, Exts.C1 to C3 commission reports, oral evidence of PWs 1 and 2 and CPWs 1 to 5. The Rent Control Court on RCR. 301/09 - 2 - evaluating the evidence came to the conclusion that the building is in such a condition as warranting reconstruction and that all the statutory pre-requisites for ordering eviction under Section 11(4)(iv) are satisfied. Accordingly, order of eviction was passed stipulating a period of one year for completing the reconstruction and directing that the tenant shall be re-inducted into the reconstructed building in terms of the third proviso to Section 11(4)(iv). The tenant preferred an appeal. The Rent Control Appellate Authority reappraised the evidence and practically concurred with all the conclusions of the Rent Control Court. Accordingly the appeal was dismissed by the Appellate Authority. 2. In this revision under Section 20 various grounds have been raised challenging the judgment of the Rent Control Appellate Authority and Sri.K.Ramachandran, learned counsel for the respondent addressed us in extenso on the basis of various grounds. All the submissions of RCR. 301/09 - 3 - Mr.Ramachandran were resisted by Mr.G.Ram Mohan, learned counsel for the respondent. Sri.Ramchandran in particular submitted that the Rent Control Court had consolidated the five rent control petitions instituted by the respondent landlord in respect of various portions of the larger building and allowed the petitions by a common order. The Appellate Authority however, decided the appeals preferred by the tenants separately and this according to the counsel, has resulted in prejudice to the revision petitioner/tenant. The learned counsel drew our attention to Ext.C1 commissioner's report as well as to the oral evidence of CPW5. The counsel submitted that C1 as well as the oral evidence of CPW5 was clearly to the effect that the condition of the building which is subject matter of the present RCR, that is which pertains to RCP No. 59 of 2006, was quite satisfactory and does not warrant reconstruction. The learned counsel submitted that going RCR. 301/09 - 4 - by the statutory definition of the word “building” part of a building is also a building and hence it was obligatory on the part of the Rent Control Appellate Authority to have independently examined the condition of the building which is subject matter of the present revision. This has not been done and this has resulted in prejudice. Lastly Mr.Ramachandran submitted that the order of the Rent Control Court has specifically provided that after reconstruction the revision petitioner will be re-inducted into a portion of the ground floor of the proposed new building. But the Appellate Authority has virtually varied the same and has only stated as mentioned above, regarding the statutory right under the third proviso to Section 11(4)(iv). 3. All the submissions of Mr.Ramachandran were opposed by Mr.Ram Mohan. Mr.Ram Mohan drew our attention to Ext.C2 and submitted that C2 is authored by the author of C1 itself and in C2 answering a specific query as to RCR. 301/09 - 5 - whether the building which is subject matter of the present revision petition warrants reconstruction, he has answered in the positive. Mr.Ram Mohan submitted that the petition schedule building is part of a larger building which is known as Rajkamal Building or Super Market Building. When the proposal is to reconstruct the entire larger building the physical condition of a portion of that building need not be separately considered. What is to be considered is the condition of the building as a whole. This is a case where all the statutory pre-requisites as envisaged by Section 11(4) (iv) have been established and the petitioner need not have any legitimate grievance since it has been assured that he will be re-inducted into the building after reconstruction. It is virtually only a temporary eviction that he is made to suffer. 4. We have very anxiously considered the rival submissions addressed at the Bar. We have also gone RCR. 301/09 - 6 - through those portions of the evidence to which our attention was drawn by counsel. The statutory pre- requisites for establishing the ground under section 11(4) (iv) are that the condition of the building, the social and physical condition of the building, should be such as warranting reconstruction; that the landlord should have the valid plan and licence issued by the competent authority for carrying out the reconstruction; and that the landlord should have the ability to carry out the reconstruction. It is trite by now that the bonafides of a need for reconstruction under Section 11(4)(iv) unlike the bonafides of a need for own occupation under Section 11(3) is something which is discernible and is to be deduced from the physical and social condition of the building, profitability of the proposal from the landlord's point of view; and the availability of a valid plan by the landlord and the circumstance that the landlord has the necessary wherewithal to carry out the RCR. 301/09 - 7 - reconstruction. We have gone through the order of the Rent Control Court and the Appellate Authority. We notice the finding entered by those authorities that the eviction ground under section 11(4)(iv) made out is a finding founded on legal evidence. It is true that the commissioner in C1 report has stated that the physical condition of the building which is subject matter of the present RCR unlike what was noticed by her during her previous visit is satisfactory. But then it is not in dispute that the building in question is not a separate building. It is only a portion of the first floor of a two storied building by name Rajkamal Building and which is called Super Market Building also in view of the fact that a super market was functioning in another portion of the larger building. It is evident that the Super Market Building as well as a fairly large portion of the entire large building is already demolished for the purpose of paving way for carrying out the proposed reconstruction. The building RCR. 301/09 - 8 - evidently is 40 years old. The building is an old fashioned one. The building is situated on a fairly extensive plot of 33 cents. The plot abuts the main road at Vazhuthacaud which is commercially and otherwise one of the most important areas of Thiruvanamthapuram which is the capital city of the State. The profitability of putting up an eight storied construction on such an extensive plot is beyond dispute from the landlord's point of view. Even though ability of the landlord to carry out the reconstruction was disputed, it is seen from the judgment of the Appellate Authority that the contention that the landlord has no financial ability to reconstruction was practically given up. The validity of Ext.A1 and A2 series issued by the Thiruvananthapuram Corporation for carrying out the reconstruction is not seriously under challenge. Thus all the relevant statutory pre-requisites such as physical as well as social condition of the entire building of which the petition schedule building is RCR. 301/09 - 9 - only a part; the availability of a valid plan and licence; the profitability of the proposal from the landlord's point of view and the availability of necessary wherewithal by the landlord for carrying out the reconstruction are all existing in this particular case. That being so, we do not find any infirmity in the finding entered by the Rent Control Court and the Appellate Authority that the landlord was successful in establishing the eviction ground under Section 11(4)(iv). 5. The right of the tenant to be re-inducted into the building from which he is evicted on the ground of reconstruction is statutory. That statutory right is only to be re-inducted into more or less equal area as was being enjoyed by him in the building before reconstruction. But in the present case we notice that the landlord in his evidence has practically undertaken to re-induct the revision petitioner/tenant into a portion of the ground floor of the proposed new building. We therefore clarify that the RCR. 301/09 - 10 - revision petitioner will be entitled to be re-inducted into the ground floor of the proposed new building subject ofcourse to his liability to pay the fair rent which will naturally be more than the fair rent payable for the first floor portion. 6. Considering Mr.Ramachandran's request that the revision petitioner be granted some time to vacate the building after closing down the agency business that he is presently carrying on, we grant four months time to the revision petitioner for vacating the premises. Mr.Ram Mohan expressed apprehension that Ext.A1 stands the risk of expiry. We are sure that if an application for extension of Ext.A1 permit is made by the landlord/respondent on the reason that there was delay in obtaining vacant possession of the building, the Thiruvananthapuram Corporation will favourably consider that application for extension. 7. The result of the above discussion therefore is as follows: RCR. 301/09 - 11 - The challenge against orders of eviction passed under section 11(4)(iv) is repelled. RCR is dismissed. Execution court is directed not to order and effect delivery of the petition schedule building for a period of four months from today subject to the condition that the revision petitioner files an affidavit before the execution court within one month from today undertaking to give peaceful surrender of the petition schedule premises to the landlord/respondent on or before 15-6-2010 and undertaking further to discharge the arrears of rent if any and to pay occupational charges at the current rent rate, as and when the same falls due. Upon noticing such affidavit the E.P. will be adjourned to 16-6-2010 by the execution court. The landlord respondent shall commence reconstruction and complete the ground floor portion of the building at the earliest and at any rate, within one year of getting vacant possession. Once the construction of the ground floor portion of the RCR. 301/09 - 12 - proposed building is completed the revision petitioner will be re-inducted into a portion of the ground floor subject to his liability to pay fair rent. The parties are directed to suffer their respective costs. PIUS C.KURIAKOSE, JUDGE C.K. ABDUL REHIM, JUDGE ksv/-