IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 3RD NOVEMBER 2009 / 12TH KARTHIKA 1931 RCRev..No. 63 of 2008() ----------------------- RCA.62/2002 of II ADDL. DISTRICT COURT, TRIVANDRUM RCP.148/2000 of I ADDL.M.C.,TRIVANDRUM .................... REVISION PETITIONER/RESPONDENT/PETITIONER ------------------------------------------------------------- A.E.UMAIBAN RUBY, W/O A.M.ISMAIL RUBY, RUBY HOUSE, RUBY NAGAR, CHALAI, TRIVANDRUM. BY ADV. SRI.G.S.REGHUNATH RESPONDENT(S): RESPONDENT/APPELLANT/COUNTER PETITONER ----------------------------------------------------- P.A.GHANI, EASTERN AUTO CONSULTANTS, CHALAI, THIRUVANANTHAPURAM. ADV. SRI.RAM MOHAN.G. FOR R SRI.G.P.SHINOD FOR R SRI.MANU V. FOR R THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 03/11/2009, ALONG WITH RCR NO. 124 OF 2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------ R.C.R..Nos. 63/2008 & 124/2009 ------------------------ Dated this the 3rd day of November, 2009 O R D E R Pius C.Kuriakose, J. R.C.R.No.63/2008 is preferred by the landlady and R.C.R.No.124/2009 is preferred by the tenant. Going by the schedule of the Rent Control Petition, the subject matter of the petition is a shop building having Door Nos. 39//66A in Rubi Nagar, Chalai, Thiruvananthapuram. The parties will be referred to as the landlady and the tenant respectively. The landlady instituted the Rent Control Petition on the ground under sub section (3) of Section 11. The need projected was that the building is required bona fide by the landlady's son for the purpose of starting business in computer software. The landlady relied on the rent agreement dated 8/10/1986, which is marked as Ext.A1. Producing that document as the very first document along with the Rent Control Petition, it was averred that the building was let out to the tenant on the date of Ext.A1. The tenant in his statement of objection denied the landlady's title. RCR.Nos.63/08 & 124/09 2 It was contended by the tenant that the building in question was constructed by him only. The bona fides of the need and the claim raised by the landlady was stiffly disputed by the tenant. The Rent Control Court enquired into the matter. At trial the evidence consisted of Ext.A1 (Rent Agreement), Ext.A2, A2(a) & A2(b) (counter foils of the receipts issued by the landlady to her various tenants including the counter foil of the receipt pertaining to the building in question), Ext.A3 (certified copy of the order of assignment passed by the Land Tribunal ordering assignment of jenmum right in favour of the landlady in respect of total extent of 49 cents as against the claim of the landlady that she was the cultivating tenant in possession of 52 cents), Ext.A4 (sale deed executed by the Canara Bank purporting to confer title over 3 cents which originally formed part of 52 cents covered by Ext.A3). Exts.A5 and A6 were certified copies of the decree and the judgment. Ext.A7 and A7(a) were the basic tax receipt. Exts.A8 and A10 were copies of the lawyer notice and reply notice respectively. Ext.A9 and A9(a) were respectively postal acknowledgment card and postal receipt. The oral evidence on the side of the landlady consisted of testimonies of RCR.Nos.63/08 & 124/09 3 PW1 (the landlady's husband), PW2(the officer of the Electricity Board who has cited to prove that electricity connection was granted to the petition schedule room considering the application submitted by the tenant in his capacity as a tenant of the building) and PW3 (the son of the landlady for whose need the building was sought for). The counter evidence on the side of the tenant consisted of Ext.B1 Agency Certificate, Ext.B2 Bank pass book and Ext.B3 notice. The summoned documents were Exts. X1 series. Exts.C1 and C1(a) were commissioner's report and plan respectively. All these documents pertained to change of name in the Registry in respect of the land covered by Ext.A3 order of the Land Tribunal. The Rent Control Court formulated as many as six points. The first point was formulated in the following terms; Whether there is a landlord tenant relationship between the petitioner and the counter petitioner in respect of the petition schedule building. The above point was raised in the context of the first proviso to the sub section 11. The other points were regarding the bona fides of the need and the claim projected by the landlady and also as to whether the tenant is entitled to get the protection of the second proviso to sub RCR.Nos.63/08 & 124/09 4 section (3) of Section 11. Appreciating the evidence, which came on record, it was held by the Rent Control Court that there existed landlord-tenant relationship between the landlady and the tenant. The other points were also answered by the Rent Control Court in favour of the landlady and accordingly order of eviction was passed under sub section (3) of Section 11. The Rent Control Appellate Authority considering the appeal preferred by the tenant reappraised the evidence. On the merits of the eviction ground invoked as well as on the bona fides of the denial made by the tenant regarding the landlady's title, the Appellate Authority concurred with the Rent Control Court. However, that Authority noticed that the petition schedule building was an unauthorised construction in the sense that the local authority (Thiruvananthapuram Corporation) had not approved the plan regarding the construction of that building prior to its construction and had not assigned any door number to the building. Therefore, even as it confirmed the order of eviction passed by the Rent Control Court, the Appellate Authority directed that eviction order will become executable only if the Thiruvananthapurm Corporation regularises the construction of RCR.Nos.63/08 & 124/09 5 the petition schedule building and assigns a building number. According to the Appellate Authority, such a direction is given considering the ambit of bona fide need as well as the identity of the building. 2. It was very extensive submissions which were addressed before us by Sri. G.Ram Mohan, learned counsel for the tenant and Sri.G.S.Reghunath, learned counsel for the landlady. Despite the constraints of our jurisdiction under Section 20, we permitted Sri.Ram Mohan to take us through the entire evidence on record. The learned counsel drew our attention to Exts.A1, A3, Ext.A4 and Exts.B1 and B2 as well as to the oral evidence adduced by PW1 and CPW1. Sri.Ram Mohan submitted that there is not even a scintilla of evidence which would prove that there is a landlord tenant relationship between the landlady and the tenant in respect of the petition schedule building. He points out that it was confessed by PW1 himself that the door number mentioned in the schedule to the RCP is not a door number assigned by the local authority, instead it is a door number assigned by the landlady herself on the basis of door number found on the certain nearby buildings. The RCR.Nos.63/08 & 124/09 6 petition schedule building is not in the row of buildings as the landlady states. But, going by Exts.C1 and C1A, the petition schedule building is an independent building. Ext.A3 order of assignment is in respect of 49 cents as against an application by the landlady for assignment of 52 cents. The Canara Bank had no title to convey in respect of the remaining portion of three cents. The petition schedule building is situated on that portion. There is no document produced by the landlady to prove that the landlady has obtained title over that portion. 3. All the submissions of the learned counsel Sri.Ram Mohan were opposed by Sri.G.S.Reghunath, who also drew our attention to the oral testimony of CPW1. He submitted that the tenant has conceded that Ext.A1 is executed by him and that Ext.A1 is in respect of the petition schedule building and that rent is being paid in respect of the petition schedule building pursuant to Ext.A1. He also referred to the evidence of PW2, the Electricity Board Engineer, who deposed that connection was given to the tenant relying on the certain rent receipts issued in favour of the landlady. Responding to the above submission of Sri.G.S.Reghunath, Sri.Ram Mohan submitted that Ext.A1 can RCR.Nos.63/08 & 124/09 7 refer only to the go down building. 4. We have anxiously considered the rival submissions addressed at the Bar. We have scanned the pleadings and have made a reappraisal of the entire evidence on record to the extent necessary for determining whether the judgment of the Rent Control Appellate Authority is tainted by illegality, irregularity or impropriety warranting invocation of the revisional jurisdiction under Section 20. The first question to be considered is whether the tenant's denial of the landlady's title is bona fide. Though not in so many words, the above question, as already indicated, was formulated by the Rent Control Court and considered by that court and by the Appellate Authority. It has been concurrently held by those facts finding authority under the statutory scheme that the denial is not bona fide. The judgment of this court in Aboobacker v. Girija (1999 (1) KLT 553) is a leading light regarding the scope of denial of landlord's title as envisaged by the proviso to sub section (1) of Section 11. It is held that in order that the denial of title raised by the tenant is upheld as bona fide, it will have to be ensured that the court whose jurisdiction stands ousted has the satisfaction that there are RCR.Nos.63/08 & 124/09 8 strong or atleast substantial grounds or sufficient materials in support of the plea of the petitioner and chances of the plea being upheld by the Civil court must be fairly on the higher side. According to us, in proceedings under the Rent Control Act proprietary or paramount title of the landlord is not much relevant. What is relevant is existence of landlord tenant relationship between the petitioner in the RCP and the respondent in the RCP who is sought to be evicted. In the instant case, the tenant not only denies existence of landlord tenant relationship, but contends that the building was put up by him and hence he is the owner of the building. When that is the nature of the contention raised by the tenant, the question to be decided is whether there are strong or atleast substantial grounds or sufficient materials in support of the plea and the chances of the plea being upheld by the Civil Court must be fairly on the higher side. It was confessed by Sri.Ram Mohan, learned counsel for the tenant that the tenant has not been able to produce any document which will support his case that the building in question was put up by him or that it is the tenant who is having ownership over the building. The circumstance, RCR.Nos.63/08 & 124/09 9 which was highlighted by the learned counsel, was the circumstance that the Land Tribunal considering the application by the landlady for assignment of 52 cents of land, became inclined to grant the application only to the extent of 49 cents. It is not clear from Ext.A3 as to what were the reasons on the basis of which the Land Tribunal declined to order assignment in respect of three cents from out of 52 cents. Probably, it was on the basis of the Revenue Inspector's Report. But, then Ext.A4 sale deed executed by Canara Bank in respect of three cents not covered by Ext.A3, is also there. We are not prepared to accept the argument of Sri.Ram Mohan that it was an unauthorised sale deed which was executed by the Canara Bank in favour of the landlady. The entire property was mortgaged to the Canara Bank and decree for sale was passed in favour of the Canara Bank by a competent Civil Court. The Bank had bought the property in auction and the Bank purchased the property and thus on the strength of the sale sannad issued by the court , the Bank came to have title. It is such title which was conveyed by the Canara Bank. Thus according to us, Exts. A3 and A4 together make out that the petitioner in the RCR is having title over a total RCR.Nos.63/08 & 124/09 10 extent of 52 cents of land inclusive of the situs of the petition schedule building. 5. According to us, in rent control proceedings proprietory or paramount title over the building in question will assume relevance only in very rare circumstance. Ordinarily, what is important in such proceedings is the landlord tenant relationship between the parties or the entitlement of the landlord to receive rent from the respondent in the RCP. In the instant case, the respondent's denial of the landlord's title comes as sequel of his contention that he is the title holder of the building in question. Sri.G. Ram Mohan, learned counsel himself confessed that the respondent has not been able to produce even a scrap of paper for supporting his claim that the building or the situs of the building belongs to him. Leave alone the situs of the building, his claim to title over the building is on the basis of his contention that it was he who put up the building, once the original building got destroyed in the arson perpetrated as a part of the notorious Hindu Muslim riot in Chalai Bazaar. Admittedly, the construction of the building was without obtaining building permit from the Thiruvanthapuram Corporation. But he has a definite case that RCR.Nos.63/08 & 124/09 11 he applied for regularisation of the construction by the Corporation and that the Corporation did not allow the same. Significantly, no documents have been produced or caused to be produced in connection with the application for regularisation. 6. The execution of Ext.A1 lease deed relied on by the revision petitioner is not disputed. But what is contended is that A1 pertains to another building belonging to the landlord used by the respondent as a godown. The door number mentioned in Ext.A1 is the same as the door number mentioned in the rent control petition. But whether such a door number is affixed by the local authority to the subject building is not free from confusion. But when the evidence of the tenant as RW1 is analysed it is seen that he has conceded that he has paid rent to the landlord on the terms of Ext.A1. Here again the argument of Mr.Ram Mohan is that the above concession relates to the rent paid in respect of godown building. According to us, there are two circumstances which will justify drawal of inference in favour of the revision petitioner regarding the identity of the building covered by Ext.A1. On the terms of Ext.A1, electricity charges are to be paid by the respondent. In other words, A1 pertains to RCR.Nos.63/08 & 124/09 12 a building which is electrified. It has been admitted that the godown building is not electrified. It is in evidence that the godown building is being used as a godown only and that it is only in the petition schedule building that actual business is being carried on by the respondent. Ext.A1 pertains to a building let out for conduct of actual business. The petition schedule building is situated adjacent to a row of buildings belonging to the revision petitioner even if not as a part of the said row of buildings. There is no dispute regarding the ownership of the petitioner over any of the other buildings situated in the property covered by Exts.A3 and A4. The probabilities according to us, are more in favour of holding that the petition schedule building belongs to the revision petitioner and is being held on a rental arrangement evidenced by Ext.A1 by the respondent. We do not find any reason for invoking the revisional jurisdiction of this court under Section 20 for upsetting the finding of the Rent Control Appellate Authority regarding the existence of a landlord tenant relationship between the parties in respect of the building. 7. Despite its finding that the respondent's denial of the landlord's title is without bona fides the Appellate Authority RCR.Nos.63/08 & 124/09 13 declined to permit the landlord to levy execution of the order of eviction on the reason that the building is an unauthorised construction to which the building number is yet to be assigned by the Corporation. This was why a condition was insisted that the landlord can take possession only if the Corporation regularises the construction and assigns a door number. According to us, the above decision of the Rent Control Appellate Authority is irregular and improper. Even the respondent does not contend that the subject building is not a building as envisaged by Act 2 of 1965. Having found that there is landlord tenant relationship between the revision petitioner and the respondent in respect of the subject building and also that the landlord is entitled for an order of eviction on the grounds specified under sub-section (3) of Section 11 of the Act the Appellate Authority was not justified in not permitting the revision petitioner to take possession if the respondent does not put the landlord in possession in obedience to the order of eviction passed by the Rent Control Court and the Appellate Authority. It was not the concern of the Appellate Authority whether the Corporation had regularised construction. It is not in RCR.Nos.63/08 & 124/09 14 dispute that many buildings were permitted to be constructed by the Government in the wake of the arson in Chalai Bazaar and that Corporation declined to assign door numbers on the reason that the constructions have been made without permits issued by them before hand. If the local authority is of the opinion that the building is unauthorised, it is for that authority to initiate appropriate action under the provisions of the Municipalities Act. We are therefore of the view that the above direction issued by the court is liable to be vacated. 8. As for the correctness of the order of eviction passed by the authorities under sub-section (3) of Section 11 we are of the view that the finding that the landlady needs the building for own occupation by her son is a finding founded on evidence on record. There is no illegality, irregularity or impropriety about that finding and we don't find any warrant for interfering with those findings. Result of the above discussions is is as follows; i). R.C.R. No.63/2008 stands allowed. ii). The direction of the Appellate Authority that order will RCR.Nos.63/08 & 124/09 15 become executable only if Thiruvananthapuram Corporation assigns door number to the building is upheld. Iii). R.C.R.No.124/2009 is dismissed. However, considering the last plea of Sri.Ram Mohan, we are inclined to grant time to the revision petitioner/tenant in R.C.R. No.124/2009 till 31/3/2010 to surrender the premises subject to the following conditions; The Revision Petitioner in R.C.R. No.124/2009 shall file an affidavit before the execution court within three weeks from today undertaking to give peaceful surrender of the petition schedule building in which he is carrying on business on or before 31-3-2010 and undertaking further to discharge arrears of rent if any as alleged in the rent control petition and to pay occupational charges at the rate alleged in the rent control petition till such time as surrender of building is made. The tenant will get the benefit of time granted under this order only if the affidavit as ordered above is filed on time. If it becomes necessary for the execution court to order delivery of the building to the landlady, that court will direct the Amin to identify the building with reference to the features such as availability of RCR.Nos.63/08 & 124/09 16 electric connection, actual conduct of business by the tenant etc. PIUS C.KURIAKOSE,JUDGE K.SURENDRA MOHAN, JUDGE dpk/ksv. The word ”upheld” occurring in the 2nd line of page 15 of the order dated 3/11/1009 in R.C.R. 63/2008 & R.C.R. 124/2009 is corrected as “vacated” vide order dated 21/01/2010 in I.A. 53/2010 in R.C.R.63/2008. Sd/- Registrar (Judicial).