Kerala High Court
Hindustan Petroleum Corporation Ltd vs George Thomas on 18 January, 2007
Author: K.T.Sankaran
Bench: K.T.Sankaran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.T.SANKARAN
&
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
WEDNESDAY, THE 18TH DAY OF JUNE 2014/28TH JYAISHTA, 1936
RCRev..No. 104 of 2014 ()
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AGAINST THE JUDGMENT IN RCA 2/2007 WITH CROSS OBJECTION OF RENT
CONTROL APPELLATE AUTHORITY (ADDL. DISTRICT JUDGE - I), PATHANAMTHITTA
AGAINST THE ORDER IN RCP 7/2005 OF RENT CONTROL COURT, ADOOR DATED
18-01-2007
REVISION PETITIONER(S)/APPELLANTS/RESPONDENTS:
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1. HINDUSTAN PETROLEUM CORPORATION LTD.
REGISTERED OFFICE AT 17 JAMSHEDJI TATA ROAD,
MUMBAI-400 020 REP. BY ITS GENERAL MANAGER
2. HINDUSTAN PETROLEUM CORPORATION LTD.
REGIONAL OFFICE AT P.B.NO.1601
TATAPURAM P.O., KOCHI 682 014
REPRESENTED BY ITS SR.REGIONAL MANAGER
BY ADVS.SRI.M.GOPIKRISHNAN NAMBIAR
SRI.P.GOPINATH
SRI.P.BENNY THOMAS
SRI.K.JOHN MATHAI
RESPONDENT(S)/RESPONDENTS/PETITIONERS:
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1. GEORGE THOMAS, AGED 62 YEARS
S/O.N.K.GEORGE, NADAKKAVIL MEDAYIL HOUSE
FORMERLY NADAKKAVIL THEKKEVEEDU
PANNIVIZHA, ADOOR, PIN 691 523.
2. KOSHY N. GEORGE, AGED 60 YEARS
S/O.N.K.GEORGE, NADAKKAVIL MEDAYIL HOUSE
FORMERLY NADAKKAVIL THEKKEVEEDU
PANNIVIZHA, ADOOR, PIN 691 523.
3. GEORGE PHILIP, AGED 64 YEARS
S/O.N.K.GEORGE, NADAKKAVIL MEDAYIL HOUSE
FORMERLY NADAKKAVIL THEKKEVEEDU,
PANNIVIZHA, ADOOR, PIN 691 523.
R3,R1,R2 BY ADV. SRI.SHAJI P.CHALY
R3 BY ADV. SRI.R.SANJITH
THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON
18-06-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
K.T.SANKARAN & A.MUHAMED MUSTAQUE, JJ.
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R.C.R.No.104 of 2014
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Dated this the 18th day of June, 2014
K.T.Sankaran, J.
O R D E R
The respondents filed R.C.P.No.7 of 2005, on the file of the Rent Control Court, Adoor, against the petitioner under Sections 11(2)(b), 11(3) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act'). The Rent Control Court allowed the R.C.P. under Section 11(3) and dismissed it under Sections 11(2)(b) and 11(4)(iii) of the Act. Challenging the order of the Rent Control Court under Section 11(3) of the Act, the petitioner/tenant filed R.C.A.No.2 of 2007, on the file of the Rent Control Appellate Authority (Additional District Judge -I), RCR 104/2014 2 Pathanamthitta. The respondents/landlords filed a memorandum of Cross Objection, challenging the order of the Rent Control Court under Sections 11(2) (b) and 11(4)(iii) of the Act. The Appellate Authority dismissed the appeal and confirmed the order of eviction under Section 11(3) of the Act. The Appellate Authority also allowed the Cross Objection in part and granted an order under Section 11(2)(b) of the Act. The order of the Rent Control Court under Section 11(4)(iii) was confirmed by the Appellate Authority and to that extent, the Cross Objection was disallowed. Thus the landlords obtained an order of eviction under Sections 11(2)(b) and 11(3) of the Act, which is under challenge in this revision filed by the tenant.
2. Originally, in the schedule to the Rent Control RCR 104/2014 3 Petition, 2 items of properties are shown. Item No.1 is an extent of 21 cents of land with the structures therein. Item No.2 is part of item No.1 in which the building is situated. According to the landlords, as per Exhibit B4 agreement dated 30.1.1965, the owner of the property, namely, Sosamma George, entered into a lease arrangement with Esso Standard Eastern Inc. for the purpose of running a Petrol and Lubrication Service Station for a period of 20 years with effect from 1.10.1964 on a monthly rent of 250/-. Esso Standard Eastern Inc. was taken over by the Government of India as per the Esso (Acquisition of undertakings in India) Act 1974 (Act 4 of 1974) and it was amalgamated with Hindustan Petroleum Corporation Ltd., (the first respondent in the Rent Control Petition). There is a renewal clause in Exhibit B4 agreement. The landlords contended that the tenant shall be deemed to have exercised the RCR 104/2014 4 option for renewal and the period of renewed lease expired on 30.9.2004. After the death of Sosamma George, the property in question was divided among her legal heirs and item No.2 in the petition schedule was allotted to the petitioners in the Rent Control Petition and the balance extent was allotted to their brother George Varghese. It was alleged that subsequent to the partition, George Varghese dispossessed the tenant with respect to the property allotted to him. According to the landlords, the building is required for their bonafide occupation for conducting an automobile workshop. The landlords also contended that the rent was in arrears and that the tenant has acquired possession of other buildings.
3. The tenant disputed the bonafide need. It was contended by the tenant that the Rent Control Petition is not RCR 104/2014 5 maintainable since Exhibit B4 demise was not in respect of the building and appurtenant land, but it was in respect of the land. The tenant contended that the land was taken on lease by the predecessor-in-interest of the tenant for running a retail outlet in petroleum products and in pursuance of the said lease, they had put up permanent structures and buildings like pumps, tanks, sales room etc. The respondents in the Rent Control Petition contended that they are entitled to the protection under Section 106 of Kerala Land Reforms Act. It was also contended that the petition schedule property is not a building as defined under the Kerala Buildings (Lease and Rent Control) Act. Both the authorities below held that the lease to the predecessor-in- interest of the present tenant was in respect of the building and not the land and therefore, the tenant is not entitled to get the protection under Section 106 of the Kerala Land Reforms Act. RCR 104/2014 6
4. For the purpose of considering the contention of the tenant that they are entitled to the benefit of Section 106 of the Land Reforms Act, it is necessary to examine the scope and ambit of Section 106 and the definition of "building" under the Kerala Buildings (Lease and Rent Control) Act. Section 106 of the Kerala Land Reforms Act provides that where on any land leased for commercial or industrial purposes, the lessee has constructed buildings for such commercial or industrial purpose before the 20th May 1967, he shall not be liable to be evicted from such land, but shall be liable to pay rent under the contract of tenancy, and such rent shall be liable to be varied every 12 years. The expression "building" occurring in Section 106 means a permanent or a temporary building and includes a shed, as provided in clause (b) of the Explanation to sub-section (1) of Section 106 of the Kerala Land Reforms Act. RCR 104/2014 7
5. Section 2(1) of the Kerala Buildings (Lease and Rent Control) Act defines "building" as follows :
"(1) "Building" means any building of 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 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, but does not include a room in a hotel or boarding-
house ;
(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."
6. In this context, it is also apposite to refer to the recitals and terms in Exhibit B4 agreement. It is stated in RCR 104/2014 8 Exhibit B4 thus :
"Whereas the lessor is absolutely seized and possessed of or otherwise well and sufficiently entitled free from encumbrances to the land described in the schedule hereto and intended to be demised and whereas the lessor has constructed on the said land buildings and structures suitable for use as a Petrol and Lubrication Service Station with driveways including footpath cutting and paving for the use of motorists (hereinafter COLLECTIVELY referred to as "The Service Station") and whereas the lessor has agreed to grant to the lessees and the lessees have agreed to take from the lessor a lease of the said land with the Service Station thereon for the period at the monthly rent and upon and subject to the terms and conditions hereinafter reserved and contained now this Indenture."
7. It is relevant to note that the lessor (Sosamma George) is described as Esso Dealer in Exhibit B4. That the buildings with driveways including footpath, cutting and paving were in existence at the time of the lease, for the RCR 104/2014 9 purpose of running a Petrol and Lubrication Service Station is clear from the recitals in Exhibit B4. The relevant part of the schedule to Exhibit B4 describes the building in existence at the time of entering into the agreement, which reads as follows :
"G-5 type masonry sales building, store room 15 ft. x 15 ft. (with tiled roofing and masonry walls), masonry washing ramp, footpath, cutting and paving, bounded on the north by Mathai Mudalalis' land, south by Kayamkulam-Punalur Road, west by Illathil Meenakshiamma's land, east by land belonging to Cheppallil Thomas and more particularly delineated on the plan hereto annexed being thereon surrounded by a red color boundary line".
8. It is also relevant to note that there is no recital in Exhibit B4 enabling the lessee to construct any building in the property. The only provision which enables the lessee to do something on the land or building is the following :
"3. The lessees shall be at liberty during the RCR 104/2014 10 said term to install, erect, maintain, affix and display at their own expense such pumps, tanks, fixtures, fittings, containers, signs, advertisements, signboards, advertisement-boards and other equipment, apparatus and things as the lessees shall deem expedient or necessary for the purposes of their business, including storage, sale, delivery and advertisement of their products on the demised premises and to remove the same but the lessees shall make good any damage caused to the demised premises by such removal."
9. Installation of things as mentioned in clause 3 above would not attract the term "building" occurring in Section 106 of the Kerala Land Reforms Act. To attract Section 106, the lease must be of land and the lessee should construct the building. If a building with appurtenant land is leased out, it would not attract Section 106 of the Land Reforms Act. The terms of Exhibit B4 agreement do not make out that the land was leased. On the other hand, various recitals in Exhibit B4 RCR 104/2014 11 would clearly show that the building with the appurtenant land was leased for the purpose of running a Petrol and Lubrication Service Station. The lessor was running the petrol bunk at the time of entering into Exhibit B4 agreement and it is clear from the description of the lessor as Esso Dealer, Adoor. There is no case for the tenant that Sosamma George was an Esso Dealer in respect of any petrol bunk in Adoor other than the one situated in the petition schedule property. The description of the building in Exhibit B4 which would take in some land as well would satisfy the definition of "building" under Section 2(1) of the Kerala Buildings (Lease and Rent Control) Act.
10. In Suryakumar Govindjee vs. Krishnammal and others : (1990) 4 Supreme Court Cases 343, the Supreme Court considered the question whether lease of vacant land RCR 104/2014 12 measuring 3600 sq. ft. with a structure covering 600 sq. ft. area would constitute lease of only land or building intended to be let out attracting the Rent Act. The lessor filed a petition for eviction under the Madras Buildings (Lease and Rent Control) Act on the ground of demolition and reconstruction and of willful denial of title within the meaning of Sections 14(1)(b) and 10(2)(vii) of the Tamil Nadu Buildings (Lease and Rent Control) Act. The tenant contended that the demised premises would not constitute a building within the meaning of Section 2 of the Rent Control Act. The Madras Buildings (Lease and Rent Control) Act defines "building". Section 2(I) of the Madras Act defines "building" as follows :
"2.(I) "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 and outhouses, if any, appurtenant to such building, hut or part of such RCR 104/2014 13 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, but does not include a room in a hotel or boarding house."
11. Dealing with the contention, the Supreme Court held :
"14. There is no difficulty in determining the scope of the lease where a building and a piece of land are separately let out. But in the case of composite lease of land and building, a question may well arise whether the lease is one of land although there is a small building or hut on it (which does not really figure in the transaction) or one of a lease of the building (in which the lease of land is incidental) or a lease of both regardless of their respective dimensions. In determining whether a particular lease is of the one kind or another, difficulties are always bound to arise and it will be necessary to examine whether the parties intended to let out the building along with the lands or vice versa."
RCR 104/2014 14
12. The decision Suryakumar Govindjee vs. Krishnammal and others : (1990) 4 Supreme Court Cases 343 and various other decisions were considered by a learned Single Judge in Kunhibi vs. Sherin : 2010(2) KLT 315 and held that in the case of a lease of office building and vacant land for conducting a petrol pump where it was made clear that the lease of building and vacant land was for conducting a petrol pump, it was not possible to break up the integrity of the lease and what is relevant for consideration is the intention of the parties while entering into the lease deed. It was held that the purpose of lease was to run the petrol pump and for that purpose, building was also let out. The building formed an important and integral part of the lease going by the terms of the lease deed. It was held in Kunhibi's case that in such circumstances, the Rent Control Act would apply.
RCR 104/2014 15
13. The tenant raised a contention that Exhibit B4 lease agreement was in respect of the entire extent of item No.1 of the petition schedule. The landlords and their brother and sister entered into a partition deed of the property held by their predecessors and item number 2 of the petition schedule was allotted to the present landlords. It was contended by the tenant that the demised premises under Exhibit B4 being not only item No.2, the landlords are not entitled to split up the tenancy and claim eviction. The landlords contended that Section 109 of the Transfer of Property Act, which provides for an exception to the general rule, would apply. The court below accepted the contention put forward by the landlords.
14. The tenant raised a contention that the subject matter of the lease was not only item No.2 of the petition schedule RCR 104/2014 16 from which the tenant is sought to be evicted, but the balance portion in item No.1 also. It is the contention of the tenant that the tenancy cannot be split up and a portion alone sought to be made the subject matter of the petition for eviction. The landlords contended that a small extent of two and odd Ares which was allotted to the brother of the present landlords was not made the subject matter of the Rent Control Petition in view of the partition deed entered into among the co-owners. It is also the case of the landlords that the small extent of land allotted to their brother was not in the possession of the lessee. It is well settled that every co-owner is entitled to maintain a Rent Control Petition even without the sanction of the other co-owners, provided there is no collusion between the tenant and the landlord. The Appellate Authority relied on Section 109 of the Transfer of Property Act and held that the RCR 104/2014 17 petitioners in the R.C.P.could claim the benefit of transferees as provided under Section 109. We are of the view that the Appellate Authority was not right in holding that Section 109 of the Transfer of Property Act would apply. No transfer is involved in the present case and the petitioners in the R.C.P. cannot be termed as transferees. They were co-owners and in view of a partition among the co-owners, item No.2 of the petition schedule was allotted to their share. The building is situated in item No.2 of the petition schedule. We do not think that splitting of tenancy had taken place in the facts and circumstances of the case. Therefore, it cannot be held that the Rent Control Petition is not maintainable.
15. The landlords wanted to conduct an automobile workshop in the petition schedule building. The first petitioner RCR 104/2014 18 in the Rent Control Petition was examined as PW1. His evidence was accepted by the authorities below and it was held that the bonafide need put forward by the landlords is genuine. This finding of fact cannot be interfered with in revision under Section 20 of the Rent Control Act. We do not find any illegality, irregularity or impropriety in the order and judgment passed by the courts below under Section 11(3) of the Act.
16. As regards the ground under Section 11(2)(b), the tenant raised a contention that the rent was not paid since the landlords did not produce proof to show that they are successors of the original landlady. The Rent Control Appellate Authority held that going by the provisions of Section 10 of the Rent Control Act read with Rule 5 of the Rules, the tenant was bound to deposit the rent in the manner provided therein. RCR 104/2014 19 Having not done so, they could not resist the claim under Section 11(2)(b). This finding rendered by the Appellate Authority is legal and proper.
For the aforesaid reasons, we do not find any ground to interfere with the judgment of the Appellate Authority granting eviction under Sections 11(2)(b) and 11(3) of the Act. The Rent Control Revision is accordingly dismissed.
K.T.SANKARAN JUDGE A.MUHAMED MUSTAQUE JUDGE csl