Kerala High Court
Malayi Kumudam vs M.V.Venugopal on 27 March, 2012
Author: A.V.Ramakrishna Pillai
Bench: Thottathil B.Radhakrishnan, A.V.Ramakrishna Pillai
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI
THURSDAY, THE 21ST DAY OF FEBRUARY 2013/2ND PHALGUNA 1934
RCRev..No. 312 of 2012 ()
-------------------------
AGAINST THE ORDER IN RCA.66/2011 of D.C. & SESSIONS COURT,KOZHIKODE
DATED 27-03-2012
AGAINST THE ORDER IN RCP.85/2006 of ADDL.M.C.,KOZHIKODE-I DATED 07-04-2011
REVISION PETITIONER(S)/APPELLANT/RESPONDENT :
----------------------------------------------------------------------------
MALAYI KUMUDAM
D/O.KARUKAYIL APPUTTI, W/O.UNNIKUTTY
RESIDING VENGERI AMSOM AND DESOM
P.O KOZHIKODE TALUK.
BY ADV. SRI.M.P.MOHAMMED ASLAM
RESPONDENT(S)/RESPONDENTS/ PETITIONER :
-------------------------------------------------------------------
1. M.V.VENUGOPAL, AGED 61 YEARS,
S/O.VASUDEVAN, RESIDING AT MADHUVALTH
KACHERI AMSOM & DESOM, KOZHIKODE TALUK PIN- 673502.
2. M.V.PRAKASH, AGED 59 YEARS, S/O. VASUDEVAN,
RESIDING AT MADHUVALTH, KACHERI AMSOM & DESOM,
KOZHIKODE TALUK, - PIN- 673502.
3. M.V.DEVAPRASAD, AGED 57 YEARS, S/O. VASUDEVAN,
RESIDING AT MADHAVALTH, KACHERI AMSOM & DESOM,
KOZHIKODE TALUK, PIN 673502.
4. SARALA, D/O. KARUKAYIL APPUTTY, AGED 58 YEARS,
C/O. ARCHANA TEXTILES, PONNANI, MALAPPURAM DISTRICT
PIN- 679577
5. SUMITHRA D/O. KARUKAYIL APPUTTY, AGED 58 YEARS,
KUTTATH HOUSE, EDAPPAL, MALAPPURAM DISTRICT PIN-679576.
R1 BY ADV. SI.K.LAKSHMINARAYANAN CAVEATOR
THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD
ON 21-01-2013, THE COURT ON 21/02/2013 PASSED THE FOLLOWING:
BP
'C.R'
THOTTATHIL B.RADHAKRISHNAN &
A.V.RAMAKRISHNA PILLAI, JJ.
---------------------------------------------
RCR No.312 of 2012
-----------------------------------------
Dated this the 21st day of February, 2013
ORDER
Ramakrishna Pillai, J.
The tenant is in revision.
2. Respondents 1 to 3 sought eviction of the revision petitioner and respondents 4 and 5 from the tenanted premises under Sections 11(2)(b) and 11(4)(iv) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (hereinafter referred to as, the 'Act', for short) alleging as follows:
a) The revision petitioner and respondents 4 and 5 are the legal heirs of the original tenant, who took the petition schedule shed from the original landlord in the year 1945 under a lease arrangement.
b) The tenants kept the rent in arrears since January 1999 and unauthorisedly made an additional construction by encroaching upon the surrounding land, thereby causing damage to the original structure. In the process of making the additional structure, a portion of the compound wall also was demolished.
3. Respondents 4 and 5 remained ex parte and the revision RCR.312/12 2 petitioner alone contested the matter. The revision petitioner contended that the tenancy right exclusively belongs to her as per a Will executed by her father. According to her, the appurtenant compound having an extent of 4 cents is also covered by the lease. The constructions were made with the permission of the landlord to make the original shed more convenient. Her further case is that she has not caused any damage to the shed or the compound wall as alleged. However, she would admit that the original shed was expanded by utilising a portion of the surrounding land. She maintained the stand that it was not a material alteration within the meaning of Section 11(4)(ii) of the Act.
4. The Rent Control Court allowed the application under both the sub sections and in appeal filed by the petitioner, the order of eviction was confirmed. The revision petitioner took the matter in revision before this Court as RCR No.314 of 2010. In that revision, order under Section 11(2)(b) was confirmed, but the matter was remitted back for fresh consideration on the claim under Section 11(4)(ii) of the Act.
5. After remand, PW2 was examined on the side of the landlords and two additional documents were marked as Exts.A2(b) and A15. PW2 is the Advocate Commissioner appointed by the civil court in O.S.No.375 of 2003 where the landlords sought a decree RCR.312/12 3 of mandatory injunction directing the tenants to remove the additional construction. He proved Ext.A2 series plan and report submitted by him in the said suit. The additional document marked as Ext.A15 is the certified copy of the decree in the said suit. After appreciating the entire evidence on record, the Rent Control Court ordered eviction under Section 11(4)(ii). The matter was carried again in appeal before the Rent Control Appellate Authority. The Rent Control Appellate Authority by the impugned order confirmed the order of eviction. Thus, this revision.
6. Arguments have been heard. The impugned judgment, the order of the Rent Control Court and other connected records were perused.
7. The fact that the revision petitioner has made structural alteration to the shed is not in dispute. The arguments advanced by the learned counsel for the revision petitioner is that the construction made by her, will not come within the ambit of Section 11(4)(ii) as the same has not destroyed or reduced the value or utility of the building materially and permanently. In other words, the alteration was not a destructive alteration, but it was an ameliorative alteration.
8. The learned counsel for the respondents, per contra, would submit that on account of the additional construction encroaching RCR.312/12 4 upon a portion of the surrounding land, the utility of the vacant space has been materially affected and thus, it would come within the purview of Section 11(4)(2) of the Act, thereby inviting an order of eviction under the said provision.
9. In this context, it is profitable to have a look at the definition of the term 'building' contained in Section 2(1) of the Act, which reads as follows:
"building" means any building or hut or part of a building or hut, let or to be let separately for residential or non-residential purpose 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;
(b) any furniture supplied by the landlord for use in such building or hut or part of a building or hut;
(c) any fittings or machinery belonging to the landlord, affixed to or installed in such building or part of such building, and intended to be used by the tenant for or in connection with the purpose for which such building or part of such building is let or to be let;
but does not include a room in a hotel or boarding house;"
(emphasis supplied) RCR.312/12 5
10. The definition of the word 'building' given above takes in grounds and other structures appurtenant to the building. The case of the landlords is that a portion of the surrounding land was also utilised for the extension of the then existing building. The original building was a shed and the revision petitioner had developed that building utilising a portion of the surrounding land. Ext.A2 series Commissioner's report corroborated by the testimony of PW2, who was the Commissioner deputed by the civil court in the original suit filed by the landlords for mandatory injunction, would reveal that a portion of the compound wall also has been demolished.
11. The learned counsel for the revision petitioner relying on the decision of the Apex Court in G.Reghunathan v K.V.Varghese reported in 2005 (7) SCC 317 argued that material alteration means a substantial change in the character, form and structure of the building without destroying its identity. It was argued that by the alleged extension, the identity of the original building was not destroyed and in fact it had added the value of the building. The argument advanced by the learned counsel for the revision petitioner is that the construction of a temporary structure like the one in the present case could easily be removed and hence, it does not come within the mischief of the Section. It was also RCR.312/12 6 pointed out that in the original suit filed by the landlords, they have obtained a decree of mandatory injunction and that has become final. According to the learned counsel for the revision petitioner once the decree is satisfied, the original status could be restored thereby dis-entitling the landlords to claim an order of eviction under Section 11(4)(ii).
12. We notice that both the courts below found concurrently that there was material alteration. We do not see any perverse or defective appreciation of the evidence by the courts below. Here, we remind ourselves of the well delineated contours of the revisional jurisdiction of this Court under Section 20 of the Act.
13. We had also the profit of noticing the decision of a Division Bench of this Court in Michael v Paramara Group Devaswom (2006 (1) KLT 979). In that case, the tenants had encroached upon open space of the landlord and made unauthorised construction covering the open area while making alterations and additions to the structure. There also, the tenants contended that by the additions, the value of the building had been increased. However, this Court held that so far as the landlord is concerned, the landlord has been deprived of the vacant space outside the original building. Based on the reasoning that the impairment should be assessed from the landlords' point of view RCR.312/12 7 and not of the tenant, it was held that the construction was sufficient to infer that the value or utility of the building has been materially affected. The facts in the present case is more or less similar to the facts covered by Paramara Group Devaswom's case (supra). So long as the definition of the building includes the appurtenant land as well as other structures, any additional construction which reduces the utility of the appurtenant land also will attract the ground of eviction under Section 11(4)(ii).
14. On a totality of the facts and circumstances of the case, we are of the definite view that the impugned order does not suffer from any illegality, impropriety or irregularity warranting an interference by this Court in exercise of the revisional powers under Section 20 of the Act.
In the result, the revision fails and is accordingly dismissed. However, we are of the view that it is only just and proper to grant the revision petitioner some time to surrender vacant possession of the tenanted premises. Hence, we direct the execution court to keep the delivery in abeyance till 30th June, 2013, subject to the following conditions:
(i) The entire arrears of rent shall be paid by the revision petitioner to the respondents/landlords within one month from today and the receipt thereof shall be produced RCR.312/12 8 before the Rent Control Court or the Execution court as the case may be, without fail;
(ii) The revision petitioner shall file an affidavit, within three weeks from today before the Execution Court or the Rent Control Court as the case may be, undertaking to surrender vacant possession of the petition schedule building peacefully to the landlords on or before 30.6.2013 and he will continue to pay occupational charges at the current rent rate till the date of actual surrender of the building to the landlords.
We make it clear that the tenant will get the benefit of time granted as above, only if he files the affidavit on time and honours the undertakings contained therein.
Sd/- THOTTATHIL B.RADHAKRISHNAN
JUDGE
sd/- A.V.RAMAKRISHNA PILLAI
JUDGE
css/ true copy
P.S.TO JUDGE