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 22ND DECEMBER 2009 / 1ST POUSHA 1931 RCRev..No. 103 of 2008() ------------------------ RCA.34/2004 of II ADDL. RENT CONTROL APPELLATE AUTHORITY, KOLLAM RCP.10/2002 of ADDL.RENT CONTROLLER, KOLLAM .................... REVISION PETITIONER/RESPONDENT/PETITIONER: ------------------------------------------ SAJJAYAN, S/O.SUKUMARAN, KULIRMA, MUNDAKKAL, KOLLAM. BY ADV. SRI.P.B.SURESH KUMAR SRI.LEO GEORGE RESPONDENTS: APPELLANTS/COUNTER PETITIONERS: ---------------------------------------------- 1. GOPAKUMAR, S/O.JANARDHANAN PILLAI, JANARDHANA MANDIRAM, VADAKKEVILA, KOLLAM. 2. HARIKUMAR, S/O.JANARDHANAN PILLAI, GOKULAM, MUNDAKKAL, KOLLAM. 3. JAYASREE, D/O.JANARDHANAN PILLAI, GOKULAM, MUNDAKKAL, KOLLAM. ADV. SRI.P.GOPAKUMARAN NAIR FOR R1 TO 3 SRI.C.S.DIAS FOR R1 TO 3 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 22/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------------------------------------------------------------------ R.C.R. NO: 103 OF 2008 ----------------------------------------------------------------------------------- Dated this the 22nd December, 2009. O R D E R SURENDRA MOHAN, J. The landlord is in revision challenging the judgment of the Rent Control Appellate Authority reversing the order of the Rent Control Court granting eviction under Section 11(3) and 11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to as the 'Act' for short. 2. The petition schedule shop room was let out to the mother of the respondent on 14.10.1983. She was conducting an authorised ration shop from the schedule premises. On 18.10.2000 the licence of the ration shop was suspended. Thereafter the shop was remaining closed without any business. It is the case of the landlord that the card holders of the tenant's shop were transferred to other neighbouring ration shops. On 15.8.2001 the original tenant died. The respondents are the legal heirs of the original tenant. According to them, the first respondent has submitted an application on 23.10.2003 for the issue of a licence for conducting the ration shop in his name. But, according to the RCR 103/2008 2 respondents no orders have been passed on the said application for the reason that the landlord was not willing to give consent for the continued occupation of the tenanted premises. 3. The eviction was sought by the landlord on the ground that the premises were needed for the occupation of his wife, who wanted to start a beauty parlour. It is the case of the landlord that his wife has passed a course in Cosmatology and beauty treatment. She was already conducting a beauty parlour in her residence which could not be conducted properly because the house was not located at a commercially important place and also due to constraints of space. The need of the landlord was disputed by the tenant contending that the same was only a ruse for eviction. It is the further case of the tenant that the location of the petition schedule shop room being right in front of the S.N. College was not at all suitable for conducting a beauty parlour. 4. The parties went to trial on the above pleadings. The evidence in the case consists of Exts. A1 to A5(a) and A5(b) documents and the oral evidence of P.W.1 on the side of the landlord and Exts.B1 to B9 documents and the oral testimonies of P.Ws 1 to 3 on the side of the tenants. Exts. X1 and X2 have been marked as third party exhibits. After an elaborate consideration of RCR 103/2008 3 the evidence on record and the rival contentions of the parties, the Rent Control Court ordered eviction on the grounds under Section 11(3) and 11(4)(v) of the Act. Eviction was declined on the ground under Section 11(2)(b). The tenant challenged the order of eviction passed by the Rent Control Court in R.C.A.34/2004 before the Rent Control Appellate Authority, Kollam. The Rent Control Appellate Authority on a re-appraisal of the evidence found that the landlord had not succeeded in making out the case under Section 11(3) and 11(4)(v) of the Act. Therefore, the appeal has been allowed and the order of eviction granted by the Rent Control Court set aside. This revision is against the said judgment of the Appellate Authority. 5. Mr. P.B.Suresh Kumar who appears for the revision petitioner contended that the ARD licence in favour of the tenant was suspended as early as on 18.10.2000. Shortly thereafter, on 15.8.2001 the original tenant passed away. Admittedly, the tenanted premises is kept closed without any business being conducted therein. The ration card holders have been transferred to other neighbouring ration shops. In the above circumstances, it is contended that there is not even a remote prospect of the shop being revived or re-started by the respondents. The landlord's wife RCR 103/2008 4 was already conducting a beauty parlour in a small way from her house. She was badly in need of the petition schedule premises for the purpose of starting a full fledged beauty parlour. The petition schedule premises was ideally suited for the purpose, being located in a commercially important area. Therefore, according to the counsel, the Rent Control Appellate Authority seriously erred in interfering with the order of eviction granted by the Rent Control Court and disallowing the claim for eviction. 6. Mr. P.Gopakumaran Nair who appears for the tenants on the other hand points out that though the licence for conducting the ration shop had been suspended, no action was taken in the matter thereafter. The original tenant expired in the meanwhile. Therefore, the fact remains that the allegations against the original tenant were not substantiated by evidence. In the above circumstances, the first respondent who is the son of the original tenant has submitted an application for the issue of a licence to conduct the ration shop in his name. But, no orders could be passed on the said application because the landlord was not willing to give his no objection for conducting the ration shop from the tenanted premises. Therefore, it is pointed out that it was due to the deliberate non-cooperation of the landlord also that the shop RCR 103/2008 5 was remaining closed. Hence, it is pointed out that the Rent Control Appellate Authority was right in rejecting the claim for eviction put forward by the landlord. It is also pointed out that the need of the landlord was not genuine and therefore, he prayed for the dismissal of the revision. 7. We have heard the counsel for the parties in detail. We have scanned the pleadings as well as the evidence in the case. 8. Though the parties addressed us on the grounds under Section 11(3) as well as under Section 11(4)(v), the counsel on both sides have submitted that the present consideration can be confined to the sustainability of the ground under Section 11(3) of the Act alone. In view of the above submission we are proceeding to consider the claim of the landlord under Section 11(3) of the Act. 9. It is the admitted case of the respondents that the licence for conducting the ration shop was suspended on 18.10.2000. On 15.8.2001 the original tenant passed away. Therefore, from 18.10.2000, for the past more than nine years, the tenanted premises has been remaining closed, without any business being conducted therein. Admittedly, the first respondent who is the son of the original tenant has applied for the grant of a licence to conduct the ration shop in his name only on 23.10.2003. It is the RCR 103/2008 6 case of the landlord that his wife is conducting a beauty parlour in his residence, where she attends only to the work of bridal make up. According to the landlord, she wants to start a full fledged beauty parlour from the tenanted premises. It is not disputed that the tenanted premises is situated in a commercially important location. The only contention is that because of the proximity of the S.N.College it is not a safe place for conducting a beauty parlour. It is trite that it is for the landlord to decide regarding the requirements of his need. He cannot be found fault with for deciding to have his need satisfied by utilising the premises owned by him, accepting the limitations thereof. What is to be examined is whether the need that is put forth is bonafide or not. It has come out in evidence that the wife of the landlord is already conducting bridal make up from his residence. His residence is not in a commercially important area. In the above circumstances, the contention that the landlord's wife wants to shift her activities to a commercially important place cannot be found fault with. Therefore, the Rent Control Court was right in finding that the need was bonafide. In fact, the Appellate Authority has also found that the need was bonafide but has disallowed the eviction only on the ground that there was no evidence to show that the present place RCR 103/2008 7 where the landlord's wife was conducting her business was unsuitable for the purpose. It was also found by the Appellate Authority that the landlord was in possession of three other rooms and that there was no evidence to show whether the said rooms were vacant or not. The landlord has produced in these proceedings the rent deeds in respect of the shop rooms which are owned by the landlord. They are shop Nos: 641, 642 and 643. The rent deeds produced before us show that the shop rooms are in occupation of other tenants. The shop room bearing door No: 638 is seen to have been taken on rent by Shri. S.V. Shaji as per rent deed dated 1.6.2000 where he is conducting a business in the spare parts of Yamaha Motors. In the shop room bearing door Nos: 640 and 641 Shri. Babu is conducting a tailoring business as per a rent deed of 1998. In the shop room bearing door Nos: 639 and 642 a medical shop is being conducted by Shri. Biju Bhaskar who is the son of the original tenant Shri. Bhaskaran who is no more, having taken the shop room on rent in the year 1997. We are satisfied about the genuineness of the documents produced before us. The documents clearly show that the other shop rooms owned by the landlord are all in occupation of other tenants. Therefore, this is a case in which the first proviso to Section 11(3) is not RCR 103/2008 8 attracted. Since the tenants are not conducting any business in the tenanted premises and not having any income they are not entitled to the benefit of second proviso to Section 11(3). In view of the above we set aside the findings of the Rent Control Appellate Authority disallowing eviction under Section 11(3) of the Act and restore the order of eviction granted by the Rent Control Court. 10. In the result, the Rent Control Revision is allowed and eviction is granted under Section 11(3) of the Act. However, the tenants are granted time up to 30.6.2010 to surrender vacant possession of the premises to the landlord, subject to the following conditions:- a) The first respondent shall file an affidavit for and on behalf of the other respondents also before the Rent Control Court or the Execution Court, as the case may be, within a period of one month from the date of receipt of a copy of this judgment, unconditionally undertaking to surrender vacant possession of the tenanted premises to the landlord on or before 30.6.2010. b) The tenant shall pay all arrears of rent due in respect of the premises and shall continue to pay occupational charges at the current rent rate till they surrender vacant possession of the premises to the landlord. It is made clear that the tenants shall be RCR 103/2008 9 entitled to the benefit of the time granted above, only if the above conditions are complied with. In the circumstances of the case, there will be no order as to costs. PIUS C.KURIAKOSE Judge K. SURENDRA MOHAN Judge jj PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. --------------------------------------- L.A.A.NO: --------------------------------------- JUDGMENT Dated: