Sam Sujendra Kumar vs B.Rajendrababu @ Babu Rajendran on 29 June, 2022

[Cites 22, Cited by 0]

Kerala High Court

Sam Sujendra Kumar vs B.Rajendrababu @ Babu Rajendran on 29 June, 2022

Common landlords-petitioners who filed R.C.P.Nos.46, 59, 66, 71 and 72 of 2013 before the Rent Control Court (Additional Munsiff), Thiruvananthapuram, seeking eviction of the respective tenants are the revision petitioners. Rent control petitions were filed seeking eviction under Section 11(2)(b), 11(3) and 11(4)(iv) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The petitioners abandoned the claim for eviction under Section 11(3) of the Act. The Rent Control Court dismissed the rent control petitions. The petitioners filed appeals under Section 18(1)(b) of the Act, but the Rent Control Appellate Authority (Additional District Judge-IV), Thiruvananthapuram dismissed the appeals. Hence, these revisions are filed challenging the said judgments and orders. Since the issues involved are similar, these revisions are considered together.

2. The petitioners own shop room Nos.TC 5/539 to 11 R.C.Rev.Nos.124, 126, 127, 128 & 134 of 2016 5/549. For easy reference, shop rooms occupied by each of the tenants and the related cases are given below:

Shop room R.C.Rev.No. R.C.A.No. R.C.P.No. No. TC.5/544 124 of 2016 60 of 2014 71 of 2013 TC.5/547, 126 of 2016 61 of 2014 59 of 2013 TC.5/548, TC.5/549 TC.5/545 127 of 2016 59 of 2014 72 of 2013 TC.5/543 128 of 2016 62 of 2014 66 of 2013 TC.5/539 134 of 2016 55 of 2014 46 of 2013

3. These rooms form part of a larger building. The rooms were let out by the predecessor-in-interest of the 2 nd petitioner. On getting title to the said rooms and the land appurtenant thereto, the 2nd petitioner sent notice to all the tenants asking them to pay rent henceforth to the 2 nd petitioner. She was attorned to as the landlady. Alleging that the respondents-tenants and also a few other tenants failed to make payment of the rent and also that the petitioners wanted to reconstruct the building making use of the entire 12 R.C.Rev.Nos.124, 126, 127, 128 & 134 of 2016 area of 43 cents where the building in question is situated, petitioners filed R.C.P.No.10 of 2000. That rent control petition was dismissed for default. After that, the petitioners filed these rent control petitions seeking eviction of the respective respondents on the very same grounds, namely, under Section 11(2)(b), 11(3) and 11(4)(i) of the Act.

4. The Rent Control Court tried the rent control petitions independently. All the five rent control petitions, regarding which these rent control revisions have arisen, were dismissed. On finding that there is evidence to show payment of rent for the period during which rent has allegedly been in arrears, and a proper demand notice is wanting, eviction on the ground of arrears of rent was declined. Regarding the ground of reconstruction, the Rent Control Court took the view that the plan and licence produced by the petitioners were not proper, even without demolition of the building in question, the proposed building can be constructed in the land belonging to the petitioners, and the petitioners' ability to 13 R.C.Rev.Nos.124, 126, 127, 128 & 134 of 2016 reconstruct and their bona fides were not proved. Another reason pointed out was that the commission report obtained in the previous rent control petitions i.e., R.C.P.No.10 of 2000, was not duly proved, and therefore, evidence is scarce to prove the condition of the building.

5. Before the Appellate Authority, the petitioners raised the very same contentions. The Appellate Authority endorsed the views of the Rent Control Court and dismissed all the five appeals. It has been pointed out before the Appellate Authority that R.C.P.No.70 of 2013 filed in respect of another room in the same building on the very same grounds was allowed and eviction ordered. Grounds for eviction in the said rent control petition is the same and when that petition has been allowed, it is only appropriate to order eviction of the tenants from the adjoining rooms. The Appellate Authority did not accept the said contention also. Accordingly, the Appellate Authority dismissed all the appeals.

6. These revisions were admitted and notice was 14 R.C.Rev.Nos.124, 126, 127, 128 & 134 of 2016 ordered to be issued to the respective respondents. All the respondents entered appearance through their learned counsel.

7. Heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondents.

8. Eviction on the ground of arrears of rent claimed by the petitioners was declined by both the courts below holding that no evidence regarding issuance of notice as contemplated in Section 11(2)(b) of the Act has been produced. The stand taken by the petitioners was that notice sent in the prelude to filing R.C.P.No.10 of 2000 was sufficient to comply with the proviso to Section 11(2)(b) of the Act.

9. It is mandatory for the landlord to send a registered notice to the tenant intimating the default and only if the tenant fails to pay the rent in arrears, together with interest and charges, there can be an order of eviction. The petitioners are relying on the notice sent years before. In all 15 R.C.Rev.Nos.124, 126, 127, 128 & 134 of 2016 the cases there is evidence to show that rent was deposited by the respective tenants in the bank account of the petitioners. When the respondents took the stand that there is no rent in arrears, PW1 deposed in court that he was unable to verify which tenant deposited what amount in his bank account, and therefore, he could not say anything about such claims of deposits. When the petitioners allege that the there is arrears of rent and they are entitled to get an order of eviction, it is their burden to show that there is arrears of rent and they have made a demand as per the provisions of Section 11(2)(b) of the Act. The notice said to have been sent does not satisfy that requirement. In the said circumstances, the findings of the courts below that the petitioners were not entitled to get an order of eviction on the ground of arrears of rent cannot be said to be incorrect. Therefore, the said findings are confirmed.

10. The respondent in R.C.Rev.No.127 of 2016 raised a contention that since R.C.P.No.10 of 2020 was dismissed, 16 R.C.Rev.Nos.124, 126, 127, 128 & 134 of 2016 these rent control petitions filed with reference to the same cause of action are barred by the provisions of Section 15 of the Act. As per the provisions of Section 15, the Rent Control Court is bound to reject a petition for eviction summarily if there was an earlier petition between the same parties and the claim in such petition was substantially the same. The further condition for getting the provisions of Section 15 attracted is that the issues in the previous proceedings have been finally decided.

11. In Janakiamma and Others v. Bhaskaran Nambiar [2014 (4) KLT 931], this Court held that what is referred to in Section 15 of the Act is only on re-agitating issues. One of the differences between Section 11 of the Code of Civil Procedure, 1908, and Section 15 of the Act is, former refers to "matter directly and substantially in issue" and in the latter, the word "matter" is conspicuously absent, and it denotes only "facts in issue". This is obvious because grounds of eviction in the Rent Control Act are based on personal 17 R.C.Rev.Nos.124, 126, 127, 128 & 134 of 2016 action relatable to the landlord or tenant, which by very nature is recurring. The expression "substantially" used in Section 15 of the Act would necessarily indicate that issue must have been decided on merits in the former proceedings.

In these cases, admittedly, R.C.P.No.10 of 2000 was dismissed for default. Therefore, the bar created by the provisions of Section 15 of the Act does not get attracted to any of these rent control petitions.

12. The learned counsel appearing for the respondents would submit that in the nature of the claim, the ground for eviction should have been under Section 11(3) of the Act and not under Section 11(4)(iv) of the Act. It is his contention that the petitioners with an oblique motive of denying the benefit available to the tenants under the second proviso to Section 11(3) of the Act, they claimed eviction under Section 11(4)

(iv) of the Act. In the light of the said contention it is necessary to decide whether the plea for eviction would come under which among the said grounds.

R.C.Rev.Nos.124, 126, 127, 128 & 134 of 2016

13. In Narayanankutty v. Abiida Abdul Kareem [2002 (2) KLT 507] this Court held that Section 11(4)(iv) would apply only in cases where the landlord bona fide requires eviction of the tenanted premises so as to construct a building in the premises where the tenanted premises situate. In this respect, this Court observed in Gopalrksihnan K. v. K.Maqbool Sha [ILR 2019 (4) Ker.41 : 2019 (4) KLT SN 9] thus,-

"The proposition, under Section 11(3) of the Act the bonafide need of the landlord need not be for retaining and using the tenanted premises after getting evicted is well settled. Need of the landlord to provide a passage through the land after demolishing the tenanted structure is also covered by Section 11(3) of the Act. The word "occupation" occurring in Section 11(3) of the Act has been interpreted in that manner by this Court in many decisions. Therefore, the principle that a landlord can secure eviction of a tenant under Section 11(3) of the Act to demolish an existing structure for providing a pathway to a property or building of his own falls within the ground under Section 11(3) of the Act is no more res integra."

R.C.Rev.Nos.124, 126, 127, 128 & 134 of 2016 The contention of the tenants is that even without demolition of the building in question, the new construction is possible. The area covered by the existing structure is not at all required to accommodate the new one. But for the beneficial and profitable enjoyment of the new structure alone, the existing structure is to be demolished, then the same can only be a bona fide need and not a case of reconstruction. The learned counsel appearing for the petitioners pointed out that as can be seen from Ext.A6 plan in R.C.P.No.71 of 2013 (The plan was marked in some other cases with a different exhibit number), the land occupied by the existing structure is required to provide necessary set back and car park in compliance with the relevant rules in the Kerala Municipality Building Rules for the new construction. His contention was resisted by the respondents alleging that Ext.A6 plan is not a duly issued one, and therefore, the same cannot be acted upon.

14. It can be seen from the oral testimony of PW1 that after putting in much effort, the petitioners could get Ext.A6 plan 20 R.C.Rev.Nos.124, 126, 127, 128 & 134 of 2016 and also Ext.P7 permit from the Corporation of Thiruvananthapuram. The petitioners had to even approach the Tribunal for Local Self Government in order to get the plan approved. It is in the said circumstances, the plan has to be approached. It has been shown in Ext.A6 that the existing building has to be demolished for the purpose of providing set back for the new building. It is true that the land in question is 43 cents. It may be correct to say that retaining the existing building, the proposed multi-storied building could be structured, but one cannot forget that in order to construct such a building, statutory requirements are to be complied with. When it is shown in the approved plan that the area occupied by the existing building is the statutorily required set back and the area for parking, the tenants cannot insist that such a building has to be retained there.

15. Ext. B2 series in R.C.Rev.No.126 of 2016 are the below shown photographs of the existing building. Similar photographs were produced in other cases and all were proved through the photographer.

R.C.Rev.Nos.124, 126, 127, 128 & 134 of 2016 22 R.C.Rev.Nos.124, 126, 127, 128 & 134 of 2016

16. It abuts the public road. Admittedly it is situated at a busy and commercially important area of the city. Its position and condition are such that its retaining in front of the proposed building undoubtedly would be an eyesore. It does not suit the locality. Its retention would not be in the public interest or common utility. Bona fides of reconstruction cannot be measured with mathematical precision. The test shall be by human probabilities having regard to the present day realities and the quest for commercial and economic growth. If a landlord proposes to construct a modern building much bigger in size than the tenanted building in the land appurtenant thereto, demolition of that building, for it not to be a scarecrow is a facet of the need for reconstruction under Section 11(4)(iv) of the Act. It is especially so if the existing building occupies the space abutting the public road, behind which only the new building can be constructed. In the circumstances, the contention of the respondent that the claim should have been under Section 11(3) of the Act is untenable. 23 R.C.Rev.Nos.124, 126, 127, 128 & 134 of 2016

17. Section 11(4)(iv) of the Act states,-

"(4) A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building,-

xxx xxx xxx

(iv) if the building is in such a condition that it needs reconstruction and if the landlord requires bona fide to reconstruct the same and if he satisfies the Court that he has the plan and licence, if any required, and the ability to rebuild and if the proposal is not made as a pretext for eviction:

Provided that the landlord who evicts a tenant and does not reconstruct completely the building within a time which may be fixed or extended by the Rent Control Court, shall on a petition before that Court be liable to a fine of rupees five hundred, if it is proved that he has wilfully neglected to reconstruct completely the building within such time:

Provided further that the Court shall have power at any time to issue directions regarding the reconstruction of the building and on failure of compliance by the landlord, to give effect to the order in any manner the Court deems fit and in appropriate cases to put the tenant back in possession or award to the evicted tenant damages equal to the excess rent he has to pay for another building that he is occupying in consequence of such eviction:

R.C.Rev.Nos.124, 126, 127, 128 & 134 of 2016 Provided further that the tenant who was evicted shall have the first option to have the reconstructed building allotted to him with liability to pay its fair rent; or"

18. A full Bench of this Court in Vadakkayil Beeyathu v. Makkandiyil Gopalan and others [2005 (1) KLT 313] explained and enumerated the requirements that are to be proved by the landlord to claim eviction under Section 11(4)(iv) of the Act, which are:

      i)     The building needs reconstruction.
      ii)    He has a bonafide need to do so.
      iii)   He has the ability to rebuild.
      iv)    The proposal should not be a pretext for eviction.

19. What was held in Balagangadhara Menon v. T.V.Peter [1984 KLT 845] regarding the need of a building to have reconstruction is that,-

"In a petition under Section 11(4)(iv) of the Act the court can have regard to the area where the building is situated, the nature of the developments that are taking place in the area, etc. it is wrong to think that a building needs reconstruction only after it has become irreparable or is about to collapse. It is not the law that the landlord should wait until that stage before he attempts a reconstruction. It is not irrelevant to refer to the local conditions." 25

R.C.Rev.Nos.124, 126, 127, 128 & 134 of 2016

20. Regarding the need of reconstruction this Court again in George Varghese v. Ammini Cherian [1995 (2) KLT 763] held that the condition of the building need not be dangerous or even dilapidated, nor need be very old for granting an order under Section 11(4)(iv) of the Act.

21. The petitioners placed strong reliance on the commission report in R.C.P.No.10 of 2000, a copy of which is Ext.A4 in all the cases except R.C.P No. 46 of 2013 (where it was not produced). But it cannot be relied on since its author was not examined. It is a commission report obtained in a proceedings to which the petitioners as well as all the respondents were parties. But for its reception in evidence in a different case its contents should have been proved by examining its author. The matter does not rather end with that. The question is whether there is evidence to prove the present condition and need of reconstruction even if it is eschewed.

22. Here, the building is an old one is not a disputed fact. Respondents invariably admitted that it is aged more than 70 years. It is also not a disputed fact that the building is a 26 R.C.Rev.Nos.124, 126, 127, 128 & 134 of 2016 single-storied old tiled building, abutting a busy public road. When such a building is demanded to be demolished in order to construct a new multi-storied shopping complex, making use of the entire land which has an area of 43 cents, the old- age or dilapidation of the structure may not alone be the criteria. As pointed above the petitioners' proposal for reconstruction of that building is quite justified in the wake of its locational unsuitability itself. Further, its condition as is seen from Ext. B2 photographs speak vividly that it is an eyesore in the locality. Without any hesitation, it can therefore be said that the existing structure needs reconstruction.

23. The view expressed by this Court in Chakolas Silk House and others v. Abdul Sathar Ismail Sait and others [1999 (1) KLJ 116] is apposite in this context. It was held,-

"12. xx xx In our opinion, it is for the landlord of the building to decide whether it need reconstruction or not. It is his property and he is the best judge on the matter and all that the court is entitled to do is to enquire whether the need is bona fide or whether it is only a pretext to evict the tenant."

R.C.Rev.Nos.124, 126, 127, 128 & 134 of 2016 It is an admitted fact that the respondents occupy the respective tenanted premises on nominal rent. Continuation of such a building on 43 cents of land at a busy junction in the city of Thiruvananthapuram is not in the interest of the landlord. The objective of the landlords behind the proposal of reconstruction cannot be doubted in the aforesaid circumstances. Any prudent person will have such an intention and thereby to use his land in a profitable way. In such circumstances, it can only be said that the petitioners' proposal to construct a building as proposed in Ext.A6 plan is only genuine and honest, therefore, it is bona fide.

24. In Parukutty v. Sarasamma and another [2002 (1) KLJ 649] this Court went on to say that mere fact that landlady tried to sell away the property pending rent control proceedings does not mean lack of bona fides. Purchasers may be aware of the pendency of the rent control proceedings. In a case where it is established that the building requires reconstruction, there is nothing illegal in selling the property, if the landlord so wishes.

25. As pointed out above, by evicting the respondents 28 R.C.Rev.Nos.124, 126, 127, 128 & 134 of 2016 from the respective tenanted premises and keeping the land idle, the petitioners would not enure any advantage. The building is of such a nature that there is no scope for any letting it out to third persons. The learned counsel appearing for the respondents in the above context, submitted that a part of the land is now occupied by a political party, and therefore, the intention of the petitioners is not to rebuild, but something else. Such a contention is raised without there having any factual foundation. We have discussed above in detail the circumstances in which the petitioners mooted the new construction and why is it a bonafide proposal. They have obtained a plan for the new construction approved and the permit. We do not expect the petitioners are not aware of the penal consequences for the failure to carryout construction contained in the second proviso to Section 11(4)(iv) of the Act. Taking all such circumstances into account, it can only be said that the petitioners have projected the ground of reconstruction not as a pretext for evicting the respondents. 29 R.C.Rev.Nos.124, 126, 127, 128 & 134 of 2016

26. Coming to the question of the ability of the petitioners to rebuild, they do not have a plea that they are readily having money with them to undertake such a construction. But it is pleaded, and stated to by PW1, the 1 st petitioner, that they can raise sufficient funds for the construction of the proposed building. Their ability to raise enough funds for such a construction is not seriously challenged. The version of PW1 in this respect is not impeached by a successful cross-examination. In Saramma Varghese v. George [1971 KLT 282] this Court held that even if the petitioner is not possessed at present of the entire amount required for the reconstruction, it is enough if he satisfies the court that he has got the power, capacity and the talent to raise the funds and carry on the construction. Viewed so, the evidence mentioned above leads us to have an irresistible conclusion that the petitioners have the ability to undertake the proposed construction.

27. The learned counsel appearing for the respondents 30 R.C.Rev.Nos.124, 126, 127, 128 & 134 of 2016 would contend that the building plan and permit were obtained not in a legal way and those are not acceptable ones. From the face of these documents itself it can be said that the Corporation authorities had issued the same. By affixing the seal of approval in the plan and permit it has become public documents. merely on raising a contention that those are documents obtained illegally it would not lose its sanctity. The respondents did not take any effort to substantiate that contention. On considering the evidence available on record we can only say that the plan and permit are duly obtained by the petitioners. Of course, period of the permit is already over.

28. In the above regard this Court in Jose v. Thomas [1992 (1) KLT 158] held,-

"In almost all cases wherein the tenants contest the claim for eviction, the period originally granted by the local authority for construction of building would expire before final disposal of the petition. It is a well known canon of interpretation that the court should adopt an interpretation which would give effect to the purpose of 31 R.C.Rev.Nos.124, 126, 127, 128 & 134 of 2016 the act and avoid an interpretation which would defeat its object. When the Rent Control Court or Revisional Authority is satisfied that the landlord has a plan and licence to reconstruct the building, his petition is not to be dismissed on a finding that the period of licence expired during the pendency of proceedings under the Act. The Act does not contemplate rejection of the petition on the ground that the period of licence granted by the Municipality expired during the pendency of the proceedings. In order to safeguard and protect the interest of the tenant in such cases, the court may incorporate a direction in the order of eviction that actual delivery of possession will be given only when landlord satisfies the execution court that the licence has been renewed or a new licence has been granted by the local authority concerned."

We respectfully endorse the said view. We hasten to add that it is not an invariable rule to insist on production of a valid permit and approved plan before giving possession. Only if the court is of the view that such production is needed for some reason, there is a need to stipulate that condition.

29. The learned Counsel for the respondents would contend that in the light of the concurrent findings of the 32 R.C.Rev.Nos.124, 126, 127, 128 & 134 of 2016 courts below declining the claim of the petitioners for eviction, this Court in its jurisdiction under Section 20 of the Act is not justified in re-appreciating the evidence and to come to an independent finding. The learned Counsel appearing for the petitioner, on the other hand, submitted that there is no bar in re-appreciationg the evidence if there is perversity in the findings of the courts below. In order to fortify that contention he placed reliance on the decision in Madhavan v. Leelamma [1991 (2) KLT 32] where this Court held that Section 20 of the Act of course allows the High Court to examine the evidence to satisfy whether the orders passed by the lower authorities did not suffer from the vice of illegality, irregularity and impropriety.

30. In Rukmini Amma Saradamma v. Kallyani Sulochana [(1993) 1 SCC 499], the scope of revisional powers of the High Court under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 came up for consideration before the Three-Judge Bench of the Apex Court. While considering whether the High Court could have 33 R.C.Rev.Nos.124, 126, 127, 128 & 134 of 2016 re-appreciated the entire evidence, the Apex Court held that, even the wider language of Section 20 of the Act cannot enable the High Court to act as a first or a second court of appeal. Otherwise, the distinction between appellate and revisional jurisdiction will get obliterated. Hence, the High Court was not right in re-appreciating the entire evidence both oral or documentary in the light of the Commissioner's report. The High Court had travelled far beyond the revisional jurisdiction. Even by the presence of the word 'propriety' it cannot mean that there could be a re-appreciation of evidence. Of course, the revisional court can come to a different conclusion but not on a re-appreciation of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it.

31. In Hindustan Petroleum Corporation Limited v. Dilbahar Singh [(2014) 9 SCC 78] a Five-Judge Bench of the Apex Court considered the revisional powers of the High Court under Rent Acts operating in different States. After 34 R.C.Rev.Nos.124, 126, 127, 128 & 134 of 2016 referring to the law laid down in Rukmini Amma Saradamma the Apex Court reiterated that even the wider language of Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 does not enable the High Court to act as a first or a second court of appeal. The Constitution Bench agreed with the view of the Three-Judge Bench in Rukmini Amma Saradamma that the word 'propriety' does not confer power upon the High Court to re-appreciate evidence to come to a different conclusion, but its consideration of evidence is confined to find out legality, regularity and propriety of the order impugned before it.

32. In Thankamony Amma v. Omana Amma [AIR 2019 SC 3803 : 2019 (4) KHC 412] after considering the matter in the backdrop of law laid down in Rukmini Amma Saradamma, Ubaiba and Dilbahar Singh (supra) the Apex Court held that when the findings rendered by the courts below were well supported by evidence on record and could not be said to be perverse in any way, the High Court could 35 R.C.Rev.Nos.124, 126, 127, 128 & 134 of 2016 not re-appreciate the evidence and interfere with the concurrent findings by the courts below while exercising revisional jurisdiction.

33. In view of the principles of law laid down in the aforesaid decisions, it is not prohibited this Court from looking into the evidence in order to ascertain whether the findings are legal, regular and proper. This Court is only expected to look whether the findings are suffering from any perversity. Applying that test we have examined the evidence on record. We find that the courts below totally fell in error in the matter of appreciation of evidence. That resulted in rendering perverse and incorrect findings. The findings are not the reflections of the evidence on record. We are therefore of the view that the same amounted to wrong exercise of jurisdiction, requiring this Court to interfere under Section 20 of the Act. Hence, we, on setting aside the findings of the courts below, hold that the petitioners are entitled to get an order of conviction under Section 11(4)(iv) of the Act with 36 R.C.Rev.Nos.124, 126, 127, 128 & 134 of 2016 respect to the petition schedule shop rooms involved in all these revisions. Suffice it to say that the respondents do have the right to get possession of space in the newly constructed building in terms of the third proviso to Section 11(4)(iv) of the Act.

34. The revision petitions are accordingly allowed. R.C.P.Nos.46, 59, 66, 71 and 72 of 2013 before the Rent Control Court (Additional Munsiff), Thiruvananthapuram stand allowed. The respondents are directed to give the petitioners vacant possession of the petition schedule shop rooms within a period of three months from today. The petitioners shall complete the construction within a period of two years from the date of getting vacant possession of the petition schedule premises.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

P.G. AJITHKUMAR, JUDGE dkr

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