Kerala High Court
Joseph vs M.A.Maraikkar on 22 August, 2012
Bench: Pius C.Kuriakose, K.Surendra Mohan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE
&
THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN
WEDNESDAY, THE 22ND DAY OF AUGUST 2012/31ST SRAVANA 1934
RCRev..No. 183 of 2009 (A)
--------------------------
RCA.11/2008 of ADDL.D.C. & MACT, PARAVUR
REVISION PETITIONER(S)/PETITIONER IN R.C.R:
------------------------------------------
JOSEPH,S/O.VAREETH,AGED 52,NJARAKKAT
HOUSE,PARAVOOTHARA KARA,PARAVUR VILLAGE
PARAVUR TALUK.
BY ADVS.SRI.K.JAYAKUMAR
SRI.P.B.KRISHNAN
RESPONDENTS IN RCR-RESPONDENTS IN R.C.A-PETITIONERS IN RCP :
-------------------------------------------------------
1. M.A.MARAIKKAR, AGED 47,S/O.MALATH
AHAMMED PILLAI,ERUMATHALA KARA,ALUVA EAST VILLAGE
ALUVA TALUK.
2. M.A.ALI,AGED 45,S/O.MALATH AHAMMED
PILLLAI,ERUMATHALA KARA,ALUVA EAST VILLAGE
ALUVA TALUK.
3. M.A.AZIZ,AGED 40,S/O.MALATH AHAMMED
PILLAI,ERUMATHALA KARA,ALUVA EAST VILLAGE
ALUVA TALUK.
4. M.A.KUNJUMUHAMMED,AGED 37,S/O.MALATH
AHAMMED PILLAI,ERUMATHALA KARA,ALUVA EAST VILLAGE
ALUVA TALUK.
BY ADV. SRI.SIRAJ KAROLY
THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD
ON 22-08-2012, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ.
-----------------------------------------------------
R.C.R No.183 of 2009-A
----------------------------------------------------
Dated this the 22nd August, 2012
O R D E R
Surendra Mohan, J.
This is a revision filed by the tenant against concurrent orders of eviction granted by the Rent Control Court and the Rent Control Appellate Authority respectively. According to the tenant, since eviction is sought for the purpose of demolishing the tenanted building for providing parking space for a multi storied building that has been constructed by the landlords behind the tenanted premises, the landlords should have filed the Rent Control Petition under Section 11(4) (iv) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter `the Act' for short), instead of under Section 11(3) thereof. But before we consider the above question, a short resume of the facts is necessary.
2. The respondents/landlords are the owners of an extent R.C.R No.183 of 2009-A 2 of 14.894 cents of land in Survey No.277/15-C of Paravur Village, wherein the tenanted shop room is situate. The petitioner is in occupation of only one room in the said building. The landlords have possession of some of the other shop rooms.
3. The Rent Control Petition was filed seeking vacant possession of the tenanted shop room contending that the respondents were intending to construct a shopping complex behind the petition schedule building. According to the respondents, they wanted to demolish the tenanted building for the purpose of providing a space for car parking and a passage for giving access to the shopping complex that was planned. According to them, though the revision petitioner had initially agreed to surrender vacant possession of the room occupied by him, on the instigation of another tenant, he had gone back on the agreement and refused to vacate. Therefore, the respondents were left with no other option but to file the Rent Control Petition seeking an order of eviction against the revision petitioner/tenant. It was also specifically averred in the Rent Control Petition that the landlords were prepared to accommodate the tenant in another room in the newly constructed building, which would be more convenient to him. R.C.R No.183 of 2009-A 3 Since the need of providing a parking area and passage for the proposed new building was the bona fide need of the landlords, R.C.P No.1 of 2006 was filed before the Rent Control Court, North Paravur, under Section 11(3) of the Act.
4. The Rent Control Petition was contested by the revision petitioner disputing the bona fides of the need that was put forth. The tenant disputed the existence of a plan and licence to undertake the construction. It was contended that the landlords did not require the space occupied by the tenanted shop room for the purpose of providing a parking area or passage for the proposed new building. The tenant also claimed protection of the second proviso to Section 11(3) contending that he was depending on the income from the business carried on by him in the said building for his livelihood and that no other suitable building was available in the locality for him to shift.
5. The Rent Control Court tried the petition on the above pleadings. The evidence in the case consists of the oral testimonies of PWs 1 and 2 and Exts.A1 to A5 documents on the side of the landlords and the oral evidence of RW1 on the side of the tenant.
6. On a consideration of the rival contentions of the R.C.R No.183 of 2009-A 4 parties as well as the evidence on record, the Rent Control Court came to the conclusion that the need put forth by the landlords was bona fide and that the tenant had failed to prove his entitlement to the protection of the second proviso to Section 11(3). Therefore, the Rent Control Petition was allowed directing the tenant to surrender vacant possession of the premises to the landlords.
7. Aggrieved by the order of the Rent Control Court, the tenant filed R.C.A No.11 of 2008 before the Rent Control Appellate Authority and Additional District Judge, North Paravur. The Appellate Authority considered the evidence on record as well as the contentions of the parties afresh and in the light of the dictum laid down by the various decisions on the point, and confirmed the order of eviction granted by the Rent Control Court. Consequently, the Rent Control Appeal was dismissed. This revision is filed by the tenant against the said judgment.
8. According to Sri P.B Krishnan, the learned counsel for the revision petitioner, both the authorities below have not considered the issues involved in the proper perspective. According to the learned counsel, the omission of the landlords to produce the plan and licence issued by the local authority was R.C.R No.183 of 2009-A 5 a grave shortcoming that cuts at the root of the claim of bonafides put forward by the landlords. It is also contended that the landlords had not taken out a commission to inspect the building site so as to convince the court of the fact that the tenanted building was required to be demolished to provide parking space for the new shopping complex. Ext.A4 commission report produced by the landlords and marked in these proceedings is a report in another case that cannot be accepted, it is contended. According to the counsel, the authorities below had cast the burden of proof wrongly on the tenant and have proceeded on the assumption that the tenant should have proved the need of the landlords to be not bona fide. Apart from the above, it is contended that the Kerala Municipality Building Rules, 1999 (hereinafter `the Building Rules' for short) mandates the necessity of providing sufficient parking space for any proposed construction. Such parking space is to be provided free of any obstruction or construction for being used exclusively for parking vehicles. Therefore, such parking spaces form an integral part of any building that is constructed in accordance with the provisions of the Building Rules. Since parking space is part of the new building, it follows R.C.R No.183 of 2009-A 6 that the tenanted building is sought to be demolished to form part of the new building that is proposed to be constructed. Consequently, it has to be held that the eviction that is sought for by the landlords is for reconstruction of the old building, for which a Rent Control Petition can be filed only under Section 11 (4)(iv) of the Act. Having not invoked the said provision, it is contended that the present petition under Section 11(3) of the Act is only to be dismissed.
9. Advocate Siraj Karoly stoutly disputes the contentions of the learned counsel for the petitioner. According to him, since two courts have already found in favour of the landlords, interference by this Court in exercise of the power of revision under Section 20 of the Act is limited to the extent of examining whether there is any illegality, irregularity or impropriety in the proceedings of the authorities below. A reappraisal of the evidence in the case is, according to the learned counsel, uncalled for. It is also submitted by the learned counsel that during the pendency of the above proceedings, the construction that was proposed by the landlords had commenced, continued and the construction of the building has now been completed. Therefore, by passage of time it is proved beyond any doubt that R.C.R No.183 of 2009-A 7 the need of the landlords was and continues to be bona fide and genuine. Since the newly constructed building does not have facility for parking cars and other vehicles, it is absolutely necessary to demolish the building occupied by the revision petitioner to provide such parking space, it is contended.
10. The learned counsel for the revision petitioner on the other hand takes strong exception to the non production of the plan and licence in these proceedings to submit that, had the plan and licence been produced, it would have been possible for this Court to ascertain whether the situs of the present building is also proposed to be occupied by either `front yard' or the `parking space' of the new construction. If the situs of the old building is proposed to form part of either the front yard or the parking space of the new construction, it is contended that Section 11(4)(iv) of the Act would be attracted. Reliance is also placed on the decision in George Pylee v. K.K.Sabu [2007(4) KHC 155] to support the above contention. The learned counsel for the landlords on the other hand places reliance on other decisions of this Court where it has been held that demolition of an old building to provide passage to a newly constructed building is a bona fide need of the landlord.
R.C.R No.183 of 2009-A 8
11. We have heard Advocate P.B.Krishnan, the learned counsel for the petitioner and Advocate Siraj Karoly, the learned counsel for the landlords at length. We have been taken through the records of the case. We have considered the rival contentions anxiously.
12. It is not in dispute that the respondents-landlords had been proceeding with their construction during the pendency of the proceedings before the Rent Control Court as well as the Appellate Authority. At present, the construction of the new building is complete. The same is located behind the present tenanted building. Therefore, the entire new building has been constructed in accordance with the plan and licence issued by the local authority, behind the existing old building, without utilising any portion of the situs thereof. For the above reason, it is clear that the demolition of the tenanted premises or the building of which the said room forms a part, was not necessary for the construction of the new building that has been completed behind the same. Section 11(4)(iv) is attracted only in a case where, "..the building is in such a condition that it needs reconstruction and if the landlord requires bona fide to reconstruct the same....". In the present case, it is not in dispute R.C.R No.183 of 2009-A 9 that the landlords do not require to reconstruct the building. In the present case, what the landlords want to do is to demolish the building and to use the site thereof for their own "bona fide need". Both the authorities below have concurrently found that the need of the landlords is bona fide and it is for the said reason that eviction has been ordered. `Bona fide need' being essentially a question of fact, does not call for any interference in exercise of the power of provision under Section 20 of the Act. However, as rightly pointed out by the learned counsel for the revision petitioner, if the ground under Section 11(4) (iv) of the Act is attracted, that would confer on the tenant a right to claim re-allotment of a portion of the newly constructed building. Such a right is not available to the tenant if the ground invoked is under Section 11(3) of the Act. Therefore, a decision as to whether the landlords should have sought eviction under Section 11(3) of the Act or under 11(4)(iv) thereof is of crucial importance. Though it is pointed out by the learned counsel for the landlords that no such contention was raised before the authorities below, since the same is essentially a question of law, we shall consider the same.
13. Section 11(3) of the Act entitles a landlord to seek an R.C.R No.183 of 2009-A 10 order of eviction from a Rent Control Court, if he `bona fide needs the building for his own occupation'. The scope of the above expressions employed by the provision has been considered, interpreted, elucidated and explained by this Court in a number of decisions. In Krishna Menon v. District Judge [1988(1) KLT 131], Thomas, J. (as he then was), had to consider whether it was permissible for a landlord to seek eviction of a tenant under Section 11(3) of the Act for the reason that he required the landed space covered by the tenanted building to be used as a passage to a new multi storied building constructed, by him behind the tenanted premises. On an interpretation of the definition of a building contained in Section 2(1) of the Act, it was held that the term `building' took in the space occupied by it also. The definition of a building in Section 2(1) is very wide and we extract the same below for reference:
"building" means any building or hut or part of a building or hut, let or to be let separately for residential or non-residential purposes 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 R.C.R No.183 of 2009-A 11 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."
After considering the scope of the above provision, Thomas, J. (as he then was) has held as follows in para.5 of the said judgment:
"5. The legislature while framing S.11(3) of the Act did not say that the occupation must be of the building as such. Though the need is of the building, the occupation is not confined to the building as such. The definition of "building" contained in S.2(1) of the Act includes the garden, grounds etc. which are appurtenant to the building. It is important to R.C.R No.183 of 2009-A 12 note that the definition includes any building also besides part of a building. The controlling words in S.2 direct that the definition is not meant to be exhaustive nor restrictive because even the items enumerated and included are subject to variations if "the context otherwise requires". The definition provides sufficient play at the joints while fixing the parameters of the scope of the expression "building"
in different situations. It enables the Rent Control Authorities to mould the reliefs in accordance with the exigency in each case. The contextual flexibility permitted in S.2(1) is meant to be used according to the particular need in different situations. If S.11(3) of the Act is to be given a narrow interpretation that it could be applied only if the building is kept up as such even after the eviction, such an interpretation is likely to bring about unjust consequences. Eg:-A person owning large vacant area behind an old or outmoded building abutting a main road in a commercially important locality of the town, is desirous of utilising the remaining vacant area for R.C.R No.183 of 2009-A 13 construction of a storeyed building complex or a big hotel or a cinema theatre. Can he not use the space occupied by the old building as car park, or as passage to the new building? If he cannot do so, the entire rear portion may become practically useless. This would be one of the hard consequences if S.11 (3) of the Act is given a narrow or strict interpretation."
14. The dictum in the above decision has been approved by the Division Bench in Daniel v. M.G.George [1993(2) KLJ 686]. In the said case, eviction was sought for using the building occupied by the tenant after its demolition, as the parking space for a multi storied building. It has been held by the Division Bench that the space occupied by the building also has to be considered as part of the building. For the above reason, it was held that a petition for eviction under Section 11(3) of the Act was maintainable.
15. In George Varghese v. Ammini Cherian [1995(2) KLT 763], eviction was sought both under Section 11(3) as well as 11(4)(iv) of the Act. In the said case, the land lady wanted to demolish the existing building and to construct a new building at R.C.R No.183 of 2009-A 14 the same site for the purpose of accommodating her son who was a dependent of hers. A Division Bench of this Court held that the need of the landlady was one under Section 11(3) of the Act and that upon entering a finding that the said need was bona fide, it was unnecessary for the court to consider whether the ground under Section 11(4)(iv) was made out. Therefore, it has been reiterated by the above decision also that the expression `building' would take within its sweep the ground or the space on which such building is situate. Therefore, it is not necessary for the purpose of substantiating a ground under Section 11(3) for the building to continue to exist either in its present form or in a reconstructed form. It is sufficient that the site of the building is utilised to satisfy the need of the landlord.
16. In Narayanankutty v. Abida Abdul Kareem [2002 (2) KLT 507], the question that arose was whether it was open to the landlord to seek an order of eviction so as to use the site occupied by the tenanted premises as a passage to a multi storied building. It was contended that when the site of the building is used as a passage, the same was meant to be used not by landlord alone but also by any person who wanted to gain access to the new building. On a consideration of the issue at R.C.R No.183 of 2009-A 15 length, this Court has held that the petition of the landlord was maintainable under Section 11(3) of the Act. Speaking for the Bench, K.S.Radhakrishnan, J. ( as he then was) has held in para.8 of the said judgment as follows:
"S.11(3) also uses the expression "for his own occupation". Contention was raised by the counsel for the tenant that the expression "for his own occupation" would mean that the landlord himself should occupy the tenanted premises or building newly constructed in the tenanted premises after demolition. We are of the view, the expression "occupation" has to be given a wider meaning. It is true that after the tenanted premises is vacated, landlord if bona fide needs the building he can occupy it or a person depending upon him as the case may be. The question is whether he can occupy the same tenanted premises once the premises is required for a passage to the newly constructed building. It is physically impossible to occupy the tenanted premises on its demolition since the area is to be used as a passage. Passage to newly R.C.R No.183 of 2009-A 16 constructed building could be used not only by the landlord but the public at large who come to the newly constructed building. One cannot expect the landlord or dependent alone is in occupation of the area left as a passage after demolition of the tenanted premises. The word "occupation" has got different shades of meaning. Chambers 20th Century Dictionary gives the meaning of "occupation" as the act of occupying, state of being employed or occupied, that which occupies or takes up one's attention. Landlord can also occupy passage leading to the building which is appurtenant. The purpose projected in this case by the landlord is bona fide. What is required is demolition of the tenanted premises so as to use it as a passage to the newly constructed building. That means, on demolition the premises is not in exclusive occupation of the landlord but could be used by others as well."
17. We are aware that in George Thomas v. T.N.Menon [2011(1) KLT 266], another Division Bench of this Court, to which one of us, namely Pius C.Kuriakose, J., was a party has R.C.R No.183 of 2009-A 17 held that where a newly constructed commercial complex behind the tenanted building is meant for the use of many others apart from the landlord, the proper provision under which eviction is to be sought is 11(4)(iv) of the Act. However, we notice that the said decision was rendered in a case where the landlord had entered into an agreement of joint venture with some others to develop the property behind by constructing the multi storied building. Only 40% of the building was given to the landlord while the balance 60% was to be occupied by the builders or sold to others. Therefore, in the said case it has been held that the need projected was not a need of the landlord alone. In the present case, since the building is exclusively owned by the respondents - landlord themselves, the said decision has no application to the facts of the present case.
18. In view of the above position of law reiterated by the various decisions already referred to, we have no doubt in our mind that the petition of the landlords under Section 11(3) of the Act is perfectly maintainable.
19. According to Sri P.B.Krishnan, the learned counsel for the revision petitioner, the Building Rules mandates that adequate parking space should be provided as part of any R.C.R No.183 of 2009-A 18 building that is proposed to be constructed. Therefore, any plan and licence for the construction of a building should make provision for such space meant to be used for parking vehicles. Since it is not permissible to construct a multi storied building without providing such a parking space, it is contended that the parking space forms an integral part of the building itself. In view of the fact that a parking space is necessary for the construction of a building, it is contended that the demolition of the tenanted building is sought for the purpose of construction of the new building. Consequently, the need put forth in the present case should be held to be for the reconstruction of the old building and therefore, attracts Section 11(4)(iv) of the Act.
20. The term `building' is defined in Rule 2(1) (l) of the Building Rules as follows:
"2(1)(l): `building' means any structure for whatsoever purpose and of whatsoever material constructed and every part thereof whether used for human habitation or not and includes foundations, plinth, walls, floors, roofs, chimneys, plumbing and building services, verandah, balcony, cornice or projections, part of a building or anything affixed R.C.R No.183 of 2009-A 19 thereto or any wall enclosing or intended to enclose any land or space and signs and outdoor display structures."
The expression `parking space' is defined under Rule 2(ba) as follows:
"parking space means an area enclosed or unenclosed, sufficient in size to park vehicles, together with a drive way connecting the parking space with a street or alley and permitting ingress and egress of vehicles."
Rule 7(9) stipulates the necessity of providing parking space. A reading of the above provisions does not justify a conclusion that the parking space is part of the building. Though Section 2(1)(l) defines a building to include walls, roofs, floors, chimneys etc, the definition does not include the parking space. In fact, `parking space' is defined separately to mean only a space meant for parking vehicles which would have a a drive way connecting the parking space to a street or road. It is not necessary that the parking space should be part of the building site. The parking space can be provided even in a separate plot. Therefore, the contention that the parking space is considered to be part of the R.C.R No.183 of 2009-A 20 new building by the Building Rules, cannot be accepted. On the contrary, since the landlords are desirous of providing space for parking vehicles at the site of the present building, it is to be held that the need projected is their own need. It has also come out in evidence that the landlords want to start a restaurant and a hotel in the new building and that the parking space is meant for their customers to park their vehicles.
21. The authorities below have considered the various contentions of the petitioners in considerable detail. The Appellate Authority has reappraised the evidence on record and has found that the order of eviction passed by the Rent Control Court is justified. We have been taken through the order of Rent Control Court as well as the judgment of the Appellate Authority. We do not find any infirmity therein justifying interference in exercise of our jurisdiction under Section 20 of the Act.
22. In the present case, in the Rent Control Petition itself, the landlords had stated that they were ready to offer a portion of the newly constructed building to the tenant. It is also on record that an area of 900 sq.ft on the ground floor of the building is still vacant. In view of the offer contained in the Rent Control Petition, we are inclined to give an opportunity to the R.C.R No.183 of 2009-A 21 tenant to specify whether he is willing to take the said area on rent.
23. This Rent Control Revision is accordingly ordered as follows:
i) The Rent Control Revision is dismissed, confirming the orders of eviction passed by the authorities below. However, the tenant is given the first option to take on rent, by paying the market rent prevailing, the vacant area presently available in the newly constructed building;
ii) The landlords shall by a registered notice intimate the tenant of their offer to give on rent the vacant area that is available on the ground floor of the newly constructed building at the prevailing market rate, to be quoted by them. In the event of the tenant not responding to the offer within a period of two weeks of the receipt of such notice, the landlords shall be free to utilise the same for any other purpose, as deemed fit. On the contrary, if the tenant expresses a desire to take the said portion of the newly constructed building at the prevailing R.C.R No.183 of 2009-A 22 market rent, he shall be put in possession of the said area after a proper rental agreement is executed among the parties.
(PIUS C.KURIKOSE, JUDGE) (K.SURENDRA MOHAN, JUDGE) rtr/