IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 1ST NOVEMBER 2010 / 10TH KARTHIKA 1932 RCRev..No. 261 of 2007() ------------------------ RCA.28/2005 of ADDL.D.C. & ADDL.MACT,ALAPPUZHA. RCP.64/1997 of PRINCIPAL MUNSIFF,ALAPPUZHA .................... REV.PETITIONER/IST RESPONDENT/ISTCOUNTERPETITIONER --------------------------------------------------------------------- K.P.KARUNAKARAN NAIR, S/O.PADMANABHA PILLAI, SHOP NO.33/1131, IN FRONT OF SD COLLEGE, VADACKAL P.O., ALAPPUZHA. BY ADV. SRIR.AZAD BABU RESPONDENTS: APPELLANT & 2ND RESPONDENT/PETITIONER & --------------------------------------------------------------------------------------------------------- SECOND COUNTER PETITIONER: ----------------------------------------------------- 1. R.SUDHAMANI AMMA, W/O.K.RADHAKRISHNA PILLAI, MANI MANDIRAM, VAKACKAL P.O., ALAPPUZHA - 3. 2. K.P.SREEKUMAR, S/O.PADMANABHA PILLAI, RESIDING AT X/130, PANAMPALLY NAGAR, ERNAKULAM. ADV. SRI.P.G.PARAMESWARA PANICKER, SENIOR ADVOCATE FOR R1 SRI.P.GOPAL FOR R1 SRI.MANURAJ. K.J FOR R2 SRI.BIJU .C. ABRAHAM FOR ADV.COMMR. THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 1/10/2009, THE COURT ON 1/11/2010 PASSED THE FOLLOWING: ORDER ON I.A. 1971 OF 2007 IN RCR 261 OF 2007 DISMISSED 1/11/2010 SD/- PIUS C. KURIAKOSE, JUDGE SD/- K.SURENDRA MOHAN, JUDGE /True copy/ jj P.S to Judge PIUS C. KURIAKOSE & K. SURENDRA MOHAN, JJ. ------------------------------------------------------------ R.C.R NO:261 OF 2007 ----------------------------------------------------------- Dated this the 1st November, 2010. O R D E R Surendra Mohan, J. This is a tenant's revision, filed challenging concurrent orders of eviction passed by the Rent Control Court and confirmed by the Rent Control Appellate Authority. 2. RCP 64/97 of the Rent Control Court, Alappuzha was filed by the first respondent-landlady under the provisions of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as the 'Act' for short) seeking eviction of the tenant on the grounds of arrears of rent, Section 11(2)(b), bonafide need for own occupation, Section 11(3) and for additional accommodation Section 11(8). The petition was contested by the tenant. After trial the Rent Control Court granted eviction only on the ground of arrears of rent. Therefore, the landlady filed RCA 28/2005 before the Rent Control Appellate Authority, Alappuzha. As per judgment dated 19/1/2007, the Appellate Authority allowed the appeal and found that the tenant was liable to be evicted on the ground of bonafide need for own occupation of the landlord also. The order of eviction RCR 261/2007 2 under Section 11(2)(b) has become final. Therefore, the ground of attack of the tenant in the above revision is confined to the order of eviction granted under Section 11(3) of the Act. 3. The tenanted shop room is part of a line building of nine shop rooms on one side with a set of same number of shop rooms on the rear side also. The building is situate on the western side of the public road in front of the S.D College, Alappuzha. The building originally belonged to the father of the first respondent. After the death of her father and mother, the first respondent succeeded to the ownership of the same. Thereafter, the tenant attorned to the first respondent and has been paying rent to her. 4. The tenanted premises is the third room from the south, forming part of the above building, bearing Municipal door No: 1131. The shop room was taken on rent in the names of the revision petitioner and the second respondent as per Ext.A1 rent deed dated 11/2/1981 from the father of the first respondent. The monthly rent of the building is Rs.60/-. The revision petitioner- tenant is conducting a college book stall in the petition schedule shop room. The first respondent-landlady is conducting a stationery shop in the adjacent shop room. She is also conducting RCR 261/2007 3 a ladies store in the southernmost room and a beauty parlour in another room behind the ladies store. 5. According to the landlady, the room from which she is conducting her beauty parlour has no road frontage or sufficient space for conducting the same in a convenient and profitable manner. The landlady contended that since she has no other employment, she wants to shift the beauty parlour to the tenanted shop room and, therefore she needed the same for her bonafide own occupation. She also contended that her daughter who is dependent on her was also interested in conducting the business. It is the further contention of the landlady that the rent is in arrears and that the tenant has another room bearing door No: XXXIII/1119 nearby in his occupation, which is sufficient to accommodate his business. Therefore, she sought eviction of the tenant. 6. The petition was resisted by the tenant, contending that there was absolutely no bonafides in the need that was put forth by the landlady. According to the tenant a number of rooms in the same building were lying vacant. Other rooms that got vacated were either kept vacant or were rented out. According to the tenant, the landlady had no intention to shift the beauty parlour. Her case that the room had no road frontage was also disputed RCR 261/2007 4 contending that the said room presently faces the newly formed, NH By pass road. According to the tenant the eviction was sought only out of personal enmity for the reason that there were a number of proceedings before the Accommodation Controller between himself and the landlady. The tenant also contended that he was conducting a business selling books, that his business could earn profits only because of its location in front of the S.D.College. He therefore, contended that it was not possible for his business to be shifted elsewhere. According to the tenant, the other shop room occupied by him was about half a kilometer away and was used only as a godown. 7. The evidence in the case consists of Exts.A1 to A12 documents and the oral evidence of the landlady as P.W.1 on one side and Exts.B1 to B6 documents and the oral evidence of C.P.Ws 1 and 2 on the side of the tenant. 8. On a consideration of the evidence both oral and documentary, the Rent Control Court came to the conclusion that the landlady had not succeeded in making out the grounds under Section 11(3) and 11(8). Therefore, eviction was granted only under Section 11(2)(b) of the Act. The Appellate Authority while allowing the appeal filed by the landlady has found that the landlady had RCR 261/2007 5 established her bonafide need under Section 11(3) of the Act and, therefore, granted an order of eviction under Section 11(3) of the Act also. The said judgment of the Appellate Authority is under challenge in this Rent Control Revision. 9. As per order in I.A.939/2009 an Advocate Commissioner was deputed from this Court to make a local inspection of the tenanted premises and to submit a report to this Court regarding the present condition of the building and other details. Accordingly, the Advocate Commissioner visited the premises on 11/4/2009 and has filed a report dated 25/5/2009, which is part of the record. The said report is admitted in evidence and is marked as a court exhibit, Ext.C1. 10. According to the description in the Commission report, the building in which the petition schedule shop room is situate, is in a dilapidated condition. It is the case of the tenant that the room in which the landlady is conducting her beauty parlour has frontage of the NH By pass which is situate at the back of the line building. The Advocate Commissioner has reported that no such road frontage is available. In fact, only an access is possible from the line building through a Municipal road having a width of 3.90 mtrs connecting the By pass road. However, the Commissioner has RCR 261/2007 6 reported that six rooms on the northern side of the petition schedule premises form part of a newly constructed building which faces the NH 47. The rooms in the said building are secured by rolling shutters. Except for one room which was remaining closed, the Advocate Commissioner has found that the rest of the rooms were occupied by different tenants. The Advocate Commissioner has reported that in the second room from the south, a banner of the LDF candidate of Alappuzha constituency, Shri. K.S.Manoj is displayed. It is clear from the commission report that the tenant has another premises in his occupation which is located about 30 mtrs away from the tenanted shop room. The said room is part of another line building with 10 rooms in the front row. It is also reported by the Advocate Commissioner that the petition schedule shop room and the second room occupied by the tenant are both situate opposite to the S.D.College compound facing the N.H 47. 11. The landlady has filed objections to the commission report contending hat the report suffers from many inaccuracies. According to the landlady there is no proper access to the room in which she is conducting her beauty parlour. The only access is to an open space (courtyard) which is on the northern side of the said shop room. She has refuted the observation of the Advocate RCR 261/2007 7 Commissioner in his report that her husband had told him at the time of inspection that four rooms in new building are lying vacant. According to her, three rooms out of the four, have already been sold off by her. Two rooms are in the occupation of tenants and the remaining one room is occupied by her. She is conducting her stationery shop business from the said room. Therefore, according to the landlady, there are no suitable vacant shop rooms available for the purpose of shifting her beauty parlour business. 12. The landlady has produced two additional documents along with I.A.1262/2009. One of the documents is an order issued by the Municipal Secretary, Alappuzha according sanction to her for the reconstruction of her old building that had collapsed. The same is order No: E3B-472/05-06 dated 27/3/2006 and is marked in her affidavit as Annexure A. Annexure B is an order dated 20/7/2007 passed by the Tahsildar and Accommodation Controller, Alappuzha, on a petition filed by the tenant for a direction to compel the landlady to conduct periodic maintenance of the tenanted shop room. As per order dated 3/7/2009, the above I.A has been allowed and the documents produced as Annexures A and B have been marked as Exts.A13 and 14 respectively. RCR 261/2007 8 13. We have heard Mr. Azad Babu who appears for the revision petitioner and Senior Advocate Shri. P.G.Parameswara Panicker who appears for the landlady, in detail. We have gone through the records of the case and have given anxious consideration to the issues raised and argued before us. 14. It is not in dispute that the landlady is conducting various businesses in the building in which the tenanted shop room is situate. She is already in occupation of one room from which she is conducting a business in stationery items and another shop room from which she is conducting a ladies store. Apart from the above, the petitioner is also conducting a beauty parlour. The need of the petitioner is for the purpose of shifting her beauty parlour to the petition schedule shop room. She wants to expand her business and to conduct the beauty parlour on a larger scale, which she is not able to do from the premises presently occupied by her for the reason that the same has no road frontage. There is no evidence or material on record to indicate that the need of the landlady is not bonafide. Though she had initially stated that her daughter was also intending to join her in the business of conducting her beauty parlour, it is pointed out by the counsel for the revision petitioner that the daughter has since been married off and is living with her RCR 261/2007 9 husband at Kottayam. That does not affect the bonafides of the landlady's need for the reason that, nothing prevents her from conducting the beauty parlour by herself. The tenant also does not have a case that she has stopped her beauty parlour after her daughter's marriage. As rightly taken note of by the Appellate Authority, the landlady has obtained an SSI Registration for her beauty parlour. She has spoken to her need, when examined in Court and has also withstood the cross examination of the counsel for the tenant. Therefore, we hold that the finding of the Appellate Authority that the landlady has succeeded in proving her bonafide need is well founded. 15. According to the counsel for the revision petitioner, the landlady has demolished the entire building portion on the northern side of the tenanted shop room and has reconstructed the same. The new reconstructed building has six shop rooms which according to the revision petitioner are in her possession. Therefore, it is contended that the bonafide need of the landlady has been extinquished. The Advocate Commissioner was deputed by this Court to ascertain and report regarding the above factual position. Accordingly Ext.C1 report has brought on record, the present position of the building. Ext.C1 report shows that the RCR 261/2007 10 building on the northern side was demolished by the landlady and that she has put up a new building in its place. According to the landlady, the entire building had become dilapidated, was on the verge of collapse due to old age and had to be reconstructed. Therefore, she had sought permission for such reconstruction. However, while granting permission for reconstruction, the Municipality insisted on the landlady to pull back the building from the National Highway by a distance of 4 ½ mtrs. But she could not undertake the construction because the rooms were occupied by the tenants. While so, the northern portion of the building comprising of six rooms collapsed and fell down. The landlady had to complete the construction of the collapsed portion alone, because she could not get possession of the tenanted premises. It is contended by the landlady that the tenanted premises are also in a dilapidated condition and that it is not safe for the customers to be admitted since it may collapse at any time. 16. Regarding the rooms in the newly constructed portion of the building, the case of the landlady is that three rooms have been sold by her while two rooms are in the occupation of tenants. From the remaining one room, the landlady is conducting her business in stationery items, which was earlier being conducted in the old RCR 261/2007 11 building. Therefore, according to the landlady, there was no room available in the newly constructed building for shifting her beauty parlour. According to the counsel for the landlady, the shop rooms had to be sold for the purpose of meeting the cost of construction of the new building. 17. Though it is admitted that the northern portion of the line building had collapsed and had to be reconstructed, there is no evidence or material available on record to show what the dimensions of the old building were and who the tenants in occupation thereof were. There is also no evidence available regarding the dimensions of the newly constructed building. According to the counsel for the landlady, the area of the building had to be substantially reduced because of the insistence of the Alappuzha Municipality on a pull back of 4 ½ mtrs from the National Highway being maintained. Since the reconstructed rooms were smaller in dimension, they were not suitable for shifting the landlady's beauty parlour. The contentions of the counsel for the landlady are stoutly opposed by the counsel for the revision petitioner. It is contended that the rooms in the reconstructed building are sufficiently large enough to satisfy the need of the landlady. It is contended that the burden to establish RCR 261/2007 12 special reasons as to why the rooms in the newly constructed building were not sufficient to satisfy her need was on the landlady and therefore, having failed to establish any such special reasons, the order of eviction was liable to be set aside. 18. We notice from the judgment of the Appellate Authority that the above contention had been raised before the said Authority also. At that time, it was contended that the landlady was in possession of other vacant rooms to one of which she could shift her beauty parlour. She has answered the above allegation in her evidence by deposing that the tenanted shop room was the most ideal for her to shift the beauty parlour. The same has been accepted and relied upon by the Appellate Authority. Similarly, though it was pointed out that the northern portion of the line building had been demolished by the landlady, the Court below has found that since the tenanted shop room was still intact, her need was still subsisting. We notice that the above are all questions of fact on which there is a total lack of evidence on record. The Appellate Authority has decided the issues involved on the fact situation obtaining at the time of filing of the Rent Control Petition. The Rent Control Petition was tried and evidence was let in, to prove the facts and circumstances that existed at that time. What RCR 261/2007 13 the tenant wants at present is for us to take note of the subsequent events and to set aside the findings of the authorities below. 19. We do not think that this is a fit case in which the entire matter should be remanded for the purpose of permitting the parties to let in further evidence to establish the disputed questions of fact on the basis of subsequent events. We notice that this is a Rent Control Petition of the year 1997. The landlady has been trying to obtain possession of the premises for more than a decade. The building is old, damaged and is likely to collapse at any moment. The business of the tenant has only flourished and admittedly, he is in occupation of another premises, close by. The Advocate Commissioner has reported that the other shop room occupied by him is only 30 mtrs away from the petition schedule shop room in the present case. Therefore, surrender of vacant possession of the tenanted premises would not cause any prejudice to him. We are also reminded of the fact that the rent in respect of the tenanted premises is in arrears and an order of eviction has been granted by the Rent Control Court for the above reason, which has become final. Therefore, there is no equity in permitting the tenant who has defaulted payment of even the paltry rent, to continue in occupation of the premises. We also take RCR 261/2007 14 note of the fact that the interests of the tenant is sufficiently protected by Section 11(12) of the Act which confers a right of re- possession of the building on him if the landlady does not occupy the premises within the time stipulated by the statute. In appropriate cases, this Court has even permitted tenants to reconstruct the tenanted premises to give effect to the statutory mandate. We do not find any illegality, impropriety or irregularity vitiating the findings of the authorities below. 20. For the above reasons, we confirm the findings of the Rent Control Appellate Authority under Section 11(3) of the Act. The Rent Control Revision fails and is liable to be dismissed. We do so. 21. This Rent Control Revision is accordingly ordered as follows:- a) The order of eviction granted by the Appellate Authority under Section 11(3) of the Act is confirmed. b) The revision petitioner-tenant is given time up to 31/1/2011 to surrender vacant possession of the petition schedule shop room to the landlady on condition that he files an affidavit before the Rent Control Court or the Execution Court, as the case may be, unconditionally undertaking to surrender vacant RCR 261/2007 15 possession of the premises to the landlady on or before the said date. c) The tenant shall also pay the entire arrears of rent due to the landlady and shall continue to pay the rent in respect of the premises without any delay or default until he surrenders vacant possession of the premises. d) In the event of the tenant committing default of any of the above conditions, the landlady shall be free to seek eviction of the tenant in accordance with law, immediately. No costs. PIUS C. KURIAKOSE Judge K. SURENDRA MOHAN Judge jj RCR 261/2007 16