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. 127 of 2009() ------------------------ AGAINST THE ORDER DATED 03/12/2008 IN RCA 22 /2003 IN RCA.20/2003 of ADDL.SESSN.COURT (ADHOC-II)KASARAGODE RCP.26/2002 of ADDL.MUNSIFF, KASARAGOD .................... REVISION PETITIONER ------------------------------- JALEEL KOYA, 47 YEARS OF AGE, S/O.S.A.KOYA, MUSLIM, PROPRIETOR RUBY DRIVING SCHOOL, K.M.C. NO.XII-37, T.B.ROAD JUNCTION, KASARGOD. BY ADV. SRI.SHIRAZ ABDULLA SRI.IMTHIYAZ AHAMED SRI.JOJO PAPPACHAN RESPONDENT(S): --------------- 1. MRS.SHAIRA BANU, 45 YEARS OF AGE, W/O.ABDULLA HAMEED, MUSLIM LAND LADY, RESIDING AT M.K.MAHAL, FORT ROAD, KASARGOD, P.O.KASARGOD. 2. K.A.MOHAMMED, 56 YEARS OF AGE, S/O.ABDULLA, MUSLIM, BUSINESS MAN, K.M.C., XII-37, T.B.ROAD JUNCTION, KASARGOD TOWN, KASARGOD.P.O. SRI.T.K.VIPINDAS FOR CAVEATOR THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 02/12/2009, ALONG WITH RCR.215/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ' C.R.' PIUS C. KURIAKOSE & K.SURENDRA MOHAN, JJ. ``````````````````````````````````````````````````````` R.C.Rev. Nos. 127 and 215 of 2009 ``````````````````````````````````````````````````````` Dated this the 2nd day of December, 2009 O R D E R Pius C. Kuriakose, J. RCR.No.215/2009 is a revision filed by the landlady and RCR.No.127/2009 is a revision filed by the tenant, being aggrieved by the judgment of the Rent Control Appellate Authority. The landlady sought to evict the tenant on the grounds of arrears of rent under Section 11(2)(b), sub-letting under Section 11(4)(i) and the ground that the tenant has used the building in such a manner as to reduce the value and utility of the building materially and permanently {Section 11(4)(ii)}. The ground of arrears of rent no longer survives and hence we are not referring to the pleadings raised by the parties with reference to that ground. The allegation of the landlady in the context of ground of sub-letting was that the first respondent is the tenant and that he has unauthorisedly sub- let or transferred a portion of the tenanted premises to the second respondent who has put up an iron bunk in that portion and is RCR.127 & 215/09 : 2 : presently conducting a Sweet Meat Shop therein. The allegation in the context of the ground under Section 11(4)(ii) was that the tenant has lowered the floor of the petition schedule building and has constructed an additional floor inside the petition schedule building with the result that the petition schedule building which, at the time of letting was a single floor building has been converted as a two floor building. It was alleged further that on account of such material alteration of the building by the first respondent, the value and utility of the building was materially and permanently reduced. 2. The second respondent, the alleged sub tenant did not send any reply to the statutory intimation notice which was issued to him also under the proviso to Section 11(4)(i). He did not raise any contentions in the Rent Control Petition either. The first respondent-tenant contended inter alia that the premises in which the second respondent is conducting Sweet Meat Stall is not part of the premises let out to him. He denied the allegations of sublease or transfer. He denied that there was any landlord- tenant relationship between him and the second respondent. As RCR.127 & 215/09 : 3 : regards the ground under Section 11(4)(ii) the first respondent contended that the allegation that the building in question was materially altered is incorrect. The very purpose of the lease was to enable him to conduct a driving school. What he has done is only to make temporary arrangements so that the driving school can be conveniently conducted in the building. On account of the temporary arrangements the value and utility of the building has only become enhanced. 3. At trial by the Rent Control Court the evidence consisted of Exts. A1 to A6 and the oral testimony of P.W.1, the landlady's brother on the side of the landlady. On the side of the tenant the same consisted of Ext.B1 and the tenant's evidence as R.W.1. Apart from that, the reports and sketch submitted by the Commissioner were marked as Exts.C1,C2 and C1(a) respectively and the Commissioner gave evidence as C.W.1. On evaluating the evidence the Rent Control Court came to the conclusion that the eviction ground under Section 11(4)(i) was not established in the case. According to that Court the bunk shop in which second respondent is conducting Sweet Meat Stall is not part of the RCR.127 & 215/09 : 4 : building that was let out to the first respondent. That being so, the allegation of subletting or transfer cannot be upheld at all. Accordingly eviction sought under Section 11(4)(i) was declined. However, it was held in the context of Section 11(4)(ii) relying on Ext.C1 Commission report, that it is material and permanent alteration which has been effected by the first respondent in the petition schedule building and that in as much as those alterations are unauthorised, the Rent Control Court concluded that the first respondent was liable to be evicted on the ground under Section 11(4)(ii). The landlady preferred RCA.No.20/2003 and the tenant preferred RCA.No.22/2003 against the order of the Rent Control Court before the Rent Control Appellate Authority. The Appellate Authority considered both the appeals together. On re-appraising the evidence that Authority concurred with all the conclusions of the Rent Control Court and in the result dismissed both the appeals. It is being aggrieved by the judgment of the Appellate Authority that the instant revisions have been filed raising various grounds. 4. We have heard the submissions of Mr.Shiraz Abdulla, RCR.127 & 215/09 : 5 : learned counsel for the revision petitioner in RCR.No.127/2009 and those of Mr.T.K.Vipindas, learned counsel for the revision petitioner in RCR.No.215/2009. 5. Very extensive submissions were addressed before us by both the counsel on the grounds raised in their respective revisions. Mr.Shiraz Abdulla submitted that there was not even a scintilla of evidence on the basis of which it could be held by the Rent Control Appellate Authority that on account of the alterations made by the tenant (even if those alterations are material and permanent as found by the authorities below), the value and utility of the building has been materially and permanently reduced. The learned counsel would in this context draw our attention to the oral testimony of P.W.1 and C.W.1, the Commissioner. The counsel submitted that even in Ext.C1 the Commissioner has only reported that material alterations have been effected. According to the learned counsel the purpose of the lease was conduct of a driving school by the tenant. It is not a regular mezzanine floor that has been constructed by the tenant inside the room. What has been done is only to have some temporary arrangement so RCR.127 & 215/09 : 6 : that articles which are necessary to be displayed in any driving school for the benefit of the students, can be conspicuously displayed. The evidence according to the learned counsel is to the effect that the space available in the room has increased and that the value of the building from anybody's point of view has also become increased. 6. Mr.T.K.Vipindas would resist all the above submissions. As regards the ground of subletting, Mr.Vipindas pointed out that it is very significant that the alleged subtenant did not raise any contest to the statutory notice or to the Rent Control Petition. The Advocate Commissioner’s report was to the effect that he was told by the alleged subtenant that he is paying rent to the tenant. But, that part of the Commission report was eschewed from consideration by the rent control court stating that the alleged subtenant also told the Commissioner that he has been carrying on his business for the past 16 years and therefore the version of the alleged subtenant cannot be accepted in piecemeal. The learned counsel argued that though it may be true that the bunk presently occupied by the alleged subtenant does not physically RCR.127 & 215/09 : 7 : form part of the building let out to the tenant for conducting driving school, the bunk shop has been installed on ground immediately appurtenant to the said building let out for enjoyment by the tenant and hence in terms of the statutory definition, the above ground forms part of the building itself. It is evident that without the permission of the tenant, the alleged subtenant could not have installed the bunk shop on that ground. The statutory eviction ground under Section 11(4)(i) is made out also when the immediate appurtenant ground of the tenanted building is transferred by the tenant unauthorisedly. The learned counsel highlighted the report of the Advocate Commissioner, which is to the effect that electricity has been taken unauthorisedly from the tenanted building to the bunk shop occupied by the alleged subtenant. The learned counsel also referred to Ext.A3, the licence issued by the Kasaragod Municipality under the relevant provisions of the Municipalities Act and Rules. The learned counsel highlighted that Ext.A3 stands issued in respect of the petition schedule building itself. This, according to the learned counsel, is not possible without the consent of the tenant. RCR.127 & 215/09 : 8 : 7. Sri.Shiraz Abdulla would oppose all the submissions of Sri.Vipindas. According to him, there is collusion between the alleged subtenant and the landlady. It is the landlady herself who permitted the alleged subtenant to put up the bunk shop in which he is presently carrying on the sweet meat stall. The landlady’s father is conducting a hotel in a nearby building and PW1 is assisting him in that hotel. To the knowledge of the landlady’s father and PW1, the alleged subtenant had been conducting sweet meat stall for the past 16 years. At any rate, there is acquiescence on the part of the landlady in the matter of the alleged subtenant carrying on sweet meat stall in the premises, where he is conducting the same presently. Mr.Shiraz pointed out that there was only one electricity connection for the petition schedule building and Ruby Medicals, nearby room in which the tenant’s nephew is conducting medical shop. It is therefore not correct to say that electricity was unauthorisedly given to the alleged subtenant by the tenant. According to him, connection is actually taken from the Ruby Medical Shop and not from the petition schedule building. RCR.127 & 215/09 : 9 : 8. We have very anxiously considered the rival submissions addressed at the Bar. For appreciating the submissions, we have made a quick survey of the relevant materials, including the pleadings raised by the parties. Eviction ground under Clause (ii) of sub-section (4) of Section 11 will stand established only when it is proved that due to the user of the tenanted building in a particular fashion including due to certain acts carried out by the tenant in the tenanted building, the value or utility of the tenanted building has been reduced materially and permanently. It is by now trite that the question whether the value or utility of the tenanted building has become materially and permanently reduced is to be answered from the point of view of the landlord. On reading through the judgment of the rent control court and the appellate authority, it would appear as if those authorities were of the view that material and permanent alteration made by the tenant unauthorisedly, to the tenanted building by itself will constitute eviction ground under Section 11(4)(ii). Having scanned the evidence, we are of the view that the authorities below are right in their view that unauthorisedly material and RCR.127 & 215/09 : 10 : permanent alterations have been made by the tenant to the building that was let out to him. But, the crux question is whether on account of such material and permanent alterations, the value or utility of the building has been reduced. We do not find even an iota of evidence to hold that the value or utility of the building has been materially and permanently reduced. The Advocate Commissioner has not reported that the value or utility of the building has been materially and permanently reduced. In his evidence as CW1, also he has not stated that the value or utility of the building has been materially and permanently reduced. PW1 is the only witness examined on the side of the landlady. Even he does not say that on account of what was done by the tenant in the petition schedule building, the value or utility of the building has been materially and permanently reduced. In fact, some of the answers given by him in cross examination would suggest that the value or at least the utility of the building has become enhanced due to the unauthorized alterations made by the tenant to the building. In the absence of evidence, the authorities below could not have held that the eviction ground under Section 11(4)(ii) RCR.127 & 215/09 : 11 : is made out. We necessarily have to interfere with the order of eviction passed under Section 11(4)(ii). 9. The authorities below declined order of eviction on the ground of subletting mainly on the reason that the bunk shop in which the alleged subtenant is presently carrying on sweet meat business has never been a part of the building in which the tenant is conducting driving school. The finding of the authorities below is that the bunk shop is a separate structure though the same stands in close proximity to the petition schedule building. A reading of the Advocate Commissioner's report and the evidence adduced by CW1 and PW1 will show that the bunk shop in which the alleged subtenant is carrying on sweet meat stall is a structure installed as an appendage of the petition schedule building on the ground which was immediately appurtenant to the petition schedule building virtually the front yard of the building obviously let out along with the building. The definition of the term 'building' as given under Clause (i) of Section 2 reads as follows: “2(1) “Building” means any building or hut or part of a building or hut, let or to be let separately for residential or non-residential RCR.127 & 215/09 : 12 : purposes and includes - (a) the garden, grounds, wells, tanks and structures, if any, appurtenant to such building, hut, or part of such building or hut, and let or to be let along with such building or hut.” 10. The evidence in this case is that the above bunk has not been assigned a separate door number by the local authority, namely Kasaragod Municipality. In fact, Ext.A3 will indicate that the local authority, which is the competent authority to regulate construction of buildings and licencing of business carried on in buildings within its area, has treated the bunk shop as a part of the petition schedule building itself. A scrutiny of the relevant provisions of the Municipality Act and the Rules thereunder would reveal that unless the licencing authority is convinced that the applicant for licence has lawful possession or permission over the premises in respect of which licence is applied for, no licence will be issued. The circumstance that the alleged subtenant was able to obtain a licence for doing sweet meat business against the door number of the petition schedule building is a circumstance of considerable moment. It is clear to our mind that it was considering some document perhaps lease deed, rent receipt or RCR.127 & 215/09 : 13 : consent letter issued by the tenant pertaining to the petition schedule building, that the alleged subtenant was able to obtain Ext.A3 licence for carrying on sweet meat business. The situation which currently obtains is that the alleged subtenant is carrying on business from a bunk installed by him on the ground appurtenant to the petition schedule building. As tenant, the revision petitioner in RCR.127/2009 is expected to retain possession of not only the petition schedule building but also its immediate appurtenant grounds, which as already indicated by us, statutorily forms part of the building. When it is seen that somebody other than the tenant is in possession of that portion, it is for the tenant to explain and establish by cogent evidence as to what is the jural relationship between him and the person in possession of that portion. The submission of Sri.Shiraz before us was that the alleged subtenant has been carrying on business from his present premises for the past 16 years with the consent of the landlady and that he is now colluding with the landlady so that his client is evicted on the ground of subletting. We are not much impressed by the above submissions. If that was the case we would expect the tenant to RCR.127 & 215/09 : 14 : have pleaded so in his statement of objections. No pleading of collusion or acquiescence is seen raised. The authorities below did notice the report of the Advocate Commissioner which was to the effect that the alleged subtenant informed him that he is possessing the bunk shop, paying rent to the tenant. Even the tenant does not have a case that what is reported by the Advocate Commissioner as to what the alleged subtenant told him is incorrect. The argument of Sri.Shiraz was that as reported by the Advocate Commissioner, the alleged subtenant told the Commissioner also that he was in possession for past 16 years in which case the tenant cannot be responsible for sublease since the tenant himself came into possession of the petition schedule building only in 2001. There is no evidence in this case on the basis of which it can be held that the alleged subtenant was in possession of his present premises for the past 16 years. In fact, the evidence is that licence was issued for the first time to the alleged subtenant only in 2002. We are of the view that among these two rival versions, the version of the landlady is more probable. Neither the tenant nor the alleged subtenant have a RCR.127 & 215/09 : 15 : case that the sublease for transfer has been terminated within the statutory period of 30 days of receiving Ext.A1 notice. Ext.A1 notice is a notice as contemplated by the proviso to Clause (i) of sub-section (4) of Section 11. That being so, in our opinion, order of eviction was liable to be passed against the tenant of subletting / transfer. In terms of Section 21 any such order of eviction will be binding on the subtenant / transferee also. 11. The upshot of the above discussion is that both the RCRs will stand allowed. The order of eviction passed by the authorities below on the ground under Section 11(4)(ii) is set aside. Order of eviction is passed against both the respondents in RCR.No.215/09 under Section 11(4)(i). Both the RCRs are thus allowed. In the circumstances, parties are directed to suffer their costs. As a last request, Sri.Shiraz sought for a reasonably long period for the tenant to vacate the premises. We feel that on the facts and circumstances of the case that there is justification for granting six months time to the tenant to vacate the premises. Accordingly, we direct that the execution court will not order and RCR.127 & 215/09 : 16 : effect delivery of the petition schedule building pursuant to this order till 31-05-2010 subject to the following conditions:- (i) The revision petitioner in RCR No.127/2009 will file an affidavit before the execution court within one month from today, undertaking to give peaceful surrender of the petition schedule building to the landlady on or before 31-05-2010. Through the very same affidavit, it shall be undertaken that arrears of rent, if any, will be paid within one month and the occupational charges at the same rate will also be paid as and when the same falls due without delay. It is made clear that the said revision petitioners will be entitled for the benefit of time granted only if the affidavit is filed on time. (PIUS C. KURIAKOSE, JUDGE) (K.SURENDRA MOHAN, JUDGE) aks/jj