Society For Prevention Of Cruelty To ... vs K.Kanakavally on 4 November, 2022

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Kerala High Court

Society For Prevention Of Cruelty To ... vs K.Kanakavally on 4 November, 2022

These revision petitions under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (the Act) are preferred challenging the common judgment rendered by the Rent Control Appellate Authority, Thalassery in a batch of appeals affirming the order of the Rent Control Court, Kannur, dismissing nine applications for eviction instituted under Section 11(3) of the Act. The common landlord in the proceedings is the petitioner in the revision petitions.

2. The landlord (the Society) is a society registered under the Societies Registration Act, 1860. The premises involved in the applications are rooms of a building let out separately to the tenants involved in the proceedings. The case set out by the Society in the applications is that the R.C.R.No.5 of 2013 & con.cases -: 15 :- landlord is an association formed for the prevention of cruelty to animals in Kannur District; that there is no animal shed-cum- inpatient clinic (animal shelter) in Kannur and that they, therefore, propose to start an animal shelter in the premises let out to the tenants. The tenants resisted the applications. The contentions taken by the tenants were mainly that the Society does not have the locus standi to institute the applications; that there is no bona fides in the need and that at any rate, the tenants are entitled to the benefit of the second proviso to Section 11(3) of the Act, inasmuch as they depend solely on the income from the business carried on in the premises for their livelihood and there are no other suitable premises in the locality for the tenants to carry on the business.

3. The Rent Control Court tried the applications jointly, permitting the parties to adduce evidence in one among the applications namely R.C.P. No.339 of 2004. On the side of the Society, the Secretary gave oral evidence as PW1. Exts.A1 to A23 documents were marked on the side of the Society. On the side of the tenants, oral evidence has been adduced by six witnesses including three tenants as RWs.1 to R.C.R.No.5 of 2013 & con.cases -: 16 :-

6. Exts.B1 series and B2 series documents were marked on the side of the tenants. Exts.X1 and X2 were the documents called for and proved through third parties.

4. The Rent Control Court found that the Society ceased to be a society for prevention of cruelty to animals on the formation of a new society for prevention of cruelty to animals under Rule 3 of the Prevention of Cruelty to Animals (Establishment and Regulation of Societies for Prevention of Cruelty to Animals) Rules, 2001 (the Rules), framed under the Prevention of Cruelty to Animals Act, 1960 for Kannur District and that the Society does not have the locus standi to institute the applications. The Rent Control Court also found that the need put forward by the Society for eviction is not bona fide. The Rent Control Court, however, rejected the contention of the tenants that they are entitled to the benefit of the second proviso to Section 11(3) of the Act. In the light of the findings aforesaid, the Rent Control Court dismissed the applications.

5. The Society challenged the decision of the Rent Control Court in appeals. The Appellate Authority, on a reappraisal of the materials, affirmed the findings of the Rent Control Court that the Society does not have the locus standi R.C.R.No.5 of 2013 & con.cases -: 17 :- to institute the applications and that the claim put forward by the Society for eviction is not bona fide. The Appellate Authority did not also interfere with the finding of the Rent Control Court that the tenants are not entitled to the benefit of the second proviso to Section 11(3) of the Act. Consequently, the appeals were dismissed affirming the decision of the Rent Control Court. As noted, it is aggrieved by the aforesaid decisions of the authorities below that the above revision petitions are instituted.

6. Heard the learned counsel for the landlord as also the learned counsel for the tenants and perused the records.

7. The learned counsel for the landlord submitted that the Society is a voluntary society registered under the Societies Registration Act, 1860 at a time when the Prevention of Cruelty to Animals Act, 1890 was in force and it is an Animal Welfare Organisation registered with the Animal Welfare Board of India. The learned counsel has relied on a printout of the list of Animal Welfare Organisations registered with Animal Welfare Board of India published in the official website of the Animal Welfare Board of India, which is produced by the landlord along R.C.R.No.5 of 2013 & con.cases -: 18 :- with the affidavit filed in support of I.A.No.1 of 2022 in R.C.R No.5 of 2013 to substantiate that the Society is an Animal Welfare Organisation. It was contended by the learned counsel that the view taken by the authorities below that the landlord ceased to be a society for prevention of cruelty to animals on the establishment of a new society by the State Government in terms of Rule 3 of the Rules, is incorrect and unsustainable. It was reiterated by the learned counsel that though the Society is named as Society for Prevention of Cruelty to Animals, it is only an Animal Welfare Organisation and therefore, there is absolutely no reason for the authorities below to suspect the bona fides of the need of the Society to establish an animal shelter in a premises owned by them and the finding rendered by the authorities that the need projected by the Society is not bona fide, is unsustainable in law. The essence of the submissions made by the learned counsel, therefore, was that the authorities below ought to have allowed the applications for eviction.

8. Per contra, the learned counsel for the tenants supported the impugned decisions. According to them, the Society being one formed for the prevention of cruelty to R.C.R.No.5 of 2013 & con.cases -: 19 :- animals with the then officials of the District Administration as its ex-officio members, it cannot function as a society for prevention of cruelty to animals after the establishment of societies by the Government exclusively for the said purpose throughout the State, that too, under the Rules. According to the learned counsel, if the Society cannot function as a society for prevention of cruelty to animals, the need put forward by them on that basis to establish an animal shelter cannot be accepted as a bona fide need. It was also argued by the learned counsel that the premises sought to be evicted are premises situated in the heart of Kannur and the same is not a place fit for running an animal shelter. It was further argued by the learned counsel that the ownership of the premises now stands transferred to the new society formed by the Government in terms of the Rules for Kannur District and the landlord cannot, therefore, have locus standi to institute proceedings seeking eviction of the tenants.

9. We have considered the arguments advanced by the learned counsel for the parties on either side.

10. Before proceeding to deal with the questions involved in these matters, it is necessary to remind ourselves, R.C.R.No.5 of 2013 & con.cases -: 20 :- the scope of jurisdiction under Section 20 of the Act. Section 20 of the Act reads thus :

20. Revision. - (1) In cases where the appellate authority empowered under section 18 is a Subordinate Judge, the District Court, and in other cases the High Court, may, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceedings taken under this Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings, and may pass such order in reference thereto as it thinks fit.

(2) The costs of and incident to all proceedings before the High Court or District Court under sub-section (1) shall be in its discretion.

In Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat, (1969) 2 SCC 74, it has been held by the Apex Court that the revisional jurisdiction of a superior court is part of its appellate jurisdiction and therefore, when the revisional jurisdiction of a High Court is invoked, subject to the limitations placed on its exercise, the High Court is empowered to pass any order in exercise of its appellate jurisdiction. Section 20 of the Act empowers the High Court to call for and examine the records relating to any order passed under the Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order. It also empowers the High Court to pass such orders in reference thereto as it R.C.R.No.5 of 2013 & con.cases -: 21 :- thinks fit. In other words, the High Court is empowered under Section 20 to pass any order as it thinks fit, if it is found that the order in respect of which the jurisdiction of the High Court is invoked is illegal, irregular or improper. In Nalakath Sainuddin v. Koorikadan Sulaiman, (2002) 6 SCC 1, placing reliance on the decision in Shankar Ramchandra Abhyankar, the Apex Court held that there is no reason to read and interpret Section 20 narrowly and limit the scope of the revisional jurisdiction of the High Court under Section 20. It was also held in the said case that the only limitation on the scope of the jurisdiction of the High Court under the said provision is that the order sought to be scrutinized must be of a subordinate authority under the Act and if the said limitation does not exist, any illegality, irregularity or impropriety coming to the notice of the High Court, which is capable of being corrected, can be corrected by the High Court by passing appropriate orders as the law requires and justice demands. There may not be any difficulty in understanding the context in which the words "legality" and "regularity" have been used in the Section. It is necessary, however, to consider the context in which the word "propriety" has been used. The said word has R.C.R.No.5 of 2013 & con.cases -: 22 :- different meanings. The quality of being appropriate or right, is one of the meanings. In Babulal Nagar v. Shree Synthetics Ltd., 1984 Supp SCC 128, the Apex Court has taken note of the fact that another meaning assigned to the word "propriety" is "justice" and explained that once a jurisdiction is conferred to examine the propriety or impropriety of the order, the jurisdiction is wide and it carries with it the same jurisdiction as the original authority to come to a different conclusion on the said set of facts. It was also clarified in the said case that if any other view is taken, the expression would lose its significance. In other words, if jurisdiction is conferred on an authority to examine the proprietariness of an order, the authority would be free to come to an appropriate decision in the given facts.

11. Having thus understood the scope of the jurisdiction under Section 20 of the Act, let us now consider the questions involved. The first and foremost question is as to whether the finding rendered by the authorities below that the landlord does not have locus standi to institute the applications, is sustainable in law.

12. Ext.A23 is a certified copy of the Memorandum of Association and Bye-Laws of the Society. It is evident from R.C.R.No.5 of 2013 & con.cases -: 23 :- Ext.A23 that the Society is one registered under the Societies Registration Act, 1860 as 'The society for the prevention of Cruelty to Animals, Cannanore' on 22.01.1935. The objects of the Society, as stated in the Memorandum of Association, are as follows:

"a) To prevent cruel and improper treatment of animals and to improve their conditions generally:

b) To educate the people in the cultivation of those merciful impulses which tend to the growth of humanity and the prevention of cruelty.

(c) To appoint paid and honorary officers and agents who will watch and report cases of cruelty to animals, to prosecute persons guilty of offences of cruelty and to warm those whose guilt is attributable to ignorance.

(d) To promote kindness to animals by instituting prize essay competitions for educational institutions, and public lectures at suitable centres by complete persons.

(e) To celebrate and animal work and hold an animal show as a public demonstration of the necessity to show kindness to animals.

(f) To publish tracts: Keylets and journals for instructions reading on the subject of kindness to animals for school and homes and

(g) To adopt such other measures as may be found necessary for the fulfilment of the above objects."

R.C.R.No.5 of 2013 & con.cases -: 24 :-

As per the rules and regulations of the Society, the then Government officials of the erstwhile Malabar District were ex- officio members of the Society. As noted, the Society is one registered as a society for prevention of cruelty to animals at a time when the Prevention of Cruelty to Animals Act, 1890 was in force. The said statute does not contain any provision requiring formation of a society for prevention of cruelty to animals. Even though the learned counsel for the landlord was not in a position to give a satisfactory explanation as to the circumstances necessitating registration of a society under the Societies Registration Act, 1860 with the objects aforesaid and with the officials referred to above as its ex-officio members, it appears to us that the Society might have been one registered under some executive orders to function as a society for prevention of cruelty to animals. The learned counsel for the landlord did not dispute the fact that the Rules have been brought into force and societies have been established now for every Revenue District in the State under the Rules. There is nothing on record to indicate that the Society was functioning as a society for prevention of cruelty to animals, at the time when the Rules came into force. Be that as it may, the Society R.C.R.No.5 of 2013 & con.cases -: 25 :- cannot, at any rate, now function as a society for prevention of cruelty to animals in the light of the provision in the Rules. But at the same time, the Society being a society registered under the Societies Registration Act, 1860, unless it is dissolved in terms of the provision contained in that statute, it will continue to exist, and in the absence of any law prohibiting a society registered under the Societies Registration Act, 1860 in taking measures for achieving the objects of the Society, it cannot be said that the Society cannot function. The contentions of the tenants that the Society ceased to exist, and the ownership of the premises stands vested with the Society which has been now formed by the Government in terms of the Rules, cannot be accepted. It is all the more so since the Society is one having its area of operation in the whole of the erstwhile Malabar District, of which the present Kannur Revenue District is only a portion. If that be so, the tenants cannot be heard to contend that the Society has no locus standi to institute applications for eviction in respect of the premises owned by them. It is all the more so since the premises admittedly being one let out by the Society to the tenants, in the light of the provisions contained in Section 116 of the Evidence Act, the R.C.R.No.5 of 2013 & con.cases -: 26 :- tenants cannot be heard to contend that the Society is not their landlord. The concurrent findings rendered by the authorities below that the landlord has no locus standi to institute applications for eviction are, therefore, unsustainable in law and liable to be set aside.

13. The question remaining to be considered is as to whether the concurrent findings rendered by the authorities below that the need set out by the Society in the applications for eviction is not bona fide, are sustainable in law. The case pleaded by the landlord in the applications is that the Society is an association formed for prevention of cruelty to animals and it is, therefore, obliged to establish animal shelters wherever such a facility is not available. According to them, such a facility is not available in Kannur and it is to establish such a facility in the premises sought to be evicted that they are seeking eviction of the tenants. It is not pleaded in the applications by the landlord that it is an animal welfare organisation registered with the Animal Welfare Board of India. Be that as it may, it is seen that the Rent Control Court took the view that the premises being small rooms situated in the heart of a town, it is not suitable for conducting an animal R.C.R.No.5 of 2013 & con.cases -: 27 :- shelter, since different forms of diseases caused by mosquitoes are rampant in the State. The Rent Control Court also took the view that since there is a veterinary hospital about 100 meters away from the premises with all modern facilities for treatment of animals, if the Society is sincere in their approach, they can engage workers to take animals which need treatment to the said veterinary hospital. It was observed by the Rent Control Court that even though the Society was formed in the year 1935, there is nothing on record to indicate that the Society has done any activity of this nature till date. It was also noted by the Rent Control Court that the Society has constructed a shopping complex in a land owned by it, contrary to its objects and there is sufficient vacant space in the compound in which the premises are situated to establish an animal shelter, if at all the Society wants to establish such a facility. It is seen that the Appellate Authority has endorsed the aforesaid views while affirming the decision of the Rent Control Court. One reason given by the Appellate Authority in addition is that the Society does not appear to have made necessary preparations for establishing an animal shelter.

R.C.R.No.5 of 2013 & con.cases -: 28 :-

14. Before considering the question, it is necessary to note that the object of the Act is only to ensure that tenants who are paying a fair rent for the premises occupied by them shall not be evicted except on the specific grounds mentioned in the Act. A bona fide need of the landlord is one of such grounds. It is so provided in Section 11(3) of the Act. No doubt, a mere desire on the part of the landlord to do something in a premises let out to the tenant is not sufficient to evict the tenant under Section 11(3) of the Act. In order to be a ground under the said provision, there shall be an element of need, of course, not a dire need. The role of the Rent Control Court is to satisfy that the need is a bona fide one, and not a ruse for eviction. In other words, if the Rent Control Court finds that the attempt of the landlord is not a ruse for eviction, it can be presumed that the need is a bona fide one.

15. Let us now examine the materials on record keeping in mind the aforesaid principles. As revealed from the objects of the Society, the Society is one established, among others, to improve generally the conditions of animals. The honorary Secretary of the Society who gave evidence as PW1 R.C.R.No.5 of 2013 & con.cases -: 29 :- in the proceedings deposed that there is no facility in Kannur District for inpatient treatment of animals. He has also deposed that the premises occupied by the tenants was originally a big hall and that the same was bifurcated later for the purpose of letting it out to the tenants by constructing walls in between and if those walls are removed, the premises can be used as a single hall. There was no challenge to the said evidence in cross-examination. The finding of the Rent Control Court that the premises which is sought to be evicted are small rooms and the same cannot be used as an animal shelter, is one arrived at without taking note of the said evidence of the honorary Secretary of the Society. Similarly, the finding rendered by the Rent Control Court that the premises which is sought to be evicted being one located in the heart of a city, an animal shelter cannot be established therein is also one rendered without any basis. The said finding, it appears, has been rendered on the assumption that it is on account of the presence of animals that various diseases are caused by mosquitoes, which is also not based on any material on record. The view of the Rent Control Court that there is no need to establish an animal shelter in the premises since there is R.C.R.No.5 of 2013 & con.cases -: 30 :- already a veterinary hospital about 100 meters away from the premises is equally unsustainable, in the light of the specific case of the Society that they intend to establish an animal shelter since there is no facility for inpatient treatment in the nearby veterinary hospital. Similarly, the view taken by the Rent Control Court that if the Society is sincere in their approach towards animals, they could have engaged persons to take animals which need treatment to the veterinary hospitals, is erroneous. As noted, the role of the Rent Control Court, in a case of this nature, is only to ensure that the attempt of the landlord is not a ruse for evicting the tenants, and while discharging the said function, the Rent Control Court cannot question the wisdom of the Society in taking a decision to establish an animal shelter in the premises. Again, the view taken by the Rent Control Court that there is no material on record to show that earlier, the Society has done something towards the welfare of the animals and that they have done something contrary to the objects of the Society etc. are unsustainable in law. Even if the Society has not done anything for the welfare of the animals and has done something contrary to its objects in the past, it cannot be inferred straight R.C.R.No.5 of 2013 & con.cases -: 31 :- away that the need put forward is not bona fide, especially when the Society is a body managed by a committee elected by its members from year-to-year. Yet another reason stated by the Rent Control Court for arriving at the conclusion aforesaid is that there is sufficient vacant space in the compound of the Society and that it could have established the animal shelter in the compound without disturbing the tenants, by constructing a separate shed for the said purpose. It is for the Society to decide as to how and in what manner they should establish the animal shelter. If the Society decides to establish the animal shelter in an existing building by evicting the tenants, the authorities under the Act cannot say that the Society could have established the same in some other manner. Going by the provisions contained in the first proviso to Section 11(3), if only the landlord has another building which could be made use of for the purpose intended, and if there are no special reasons for not occupying the said building for the purpose intended, the scheme of the Act is that, the landlord is entitled to an order of eviction under Section 11(3). Coming to the appellate judgment, as indicated, the Appellate Authority has virtually endorsed the reasons stated by the Rent Control R.C.R.No.5 of 2013 & con.cases -: 32 :- Court. The only additional reason stated is that the office bearers have not made necessary arrangements for establishing the animal shelter, like obtaining licence, arranging funds required for the same etc. We do not think that it is a reason to doubt the bona fides of the landlord, especially when the landlord is a Society managed by persons elected from time to time by its members. In this context, it is necessary to state that even though there is a requirement in the Act that the applications for eviction shall be disposed of as far as possible, within four months, it is a fact that it takes years for an application for eviction to culminate in an order of eviction. In the case on hand, even after eighteen years, the proceedings are yet to be over. This being the ground reality, no court can expect a landlord to make preparations like obtaining licence, arranging funds etc. before instituting the applications in a case of this nature. Needless to say, the findings of the authorities below that the need set out by the landlord is not bona fide, is highly improper.

16. In the circumstances, the impugned orders of the authorities below are set aside and the applications for eviction are allowed, directing the tenants to surrender vacant R.C.R.No.5 of 2013 & con.cases -: 33 :- possession of the premises within one month.

The rent control revisions are allowed as above.

Sd/-

P.B.SURESH KUMAR, JUDGE.

Sd/-

C.S.SUDHA, JUDGE.


ds 27.10.2022
 R.C.R.No.5 of 2013 & con.cases   -: 34 :-




                     APPENDIX OF RCREV. 5/2013


PETITIONER ANNEXURES

Annexure A1             TRUE COPY OF
                        HTTP://WWW.AWBI.IN/AWBIPDF/
                        RECOLIST_26082022.PDF, THE LIST OF
                        RECOGNIZED ANIMAL WELFARE
                        ORGANIZATIONS AS ON 26.08.2022

Annexure A2             TRUE COPY OF THE MEMORANDUM OF
                        ASSOCIATIONS WITH RULES AND
                        REGULATIONS OF THE STATUTORY SOCIETY
                        FOR THE DISTRICT OF KANNUR TO BE SPCA
                        FROM 05-02- 2002
 R.C.R.No.5 of 2013 & con.cases   -: 35 :-




                     APPENDIX OF RCREV. 8/2013

PETITIONER ANNEXURES

Annexure A1             TRUE COPY OF HTTP://WWW.AWBI.IN/AWBI-
                        PDF/RECOLIST_26082022.PDF, THE LIST OF
                        RECOGNIZED ANIMAL WELFARE
                        ORGANIZATIONS AS ON 26.08.2022

Annexure A2             TRUE COPY OF THE MEMORANDUM OF
                        ASSOCIATIONS WITH RULES AND
                        REGULATIONS OF THE STATUTORY SOCIETY
                        FOR THE DISTRICT OF KANNUR TO BE SPCA
                        FROM 05-02-2002
 R.C.R.No.5 of 2013 & con.cases   -: 36 :-




                    APPENDIX OF RCREV. 13/2013


PETITIONER ANNEXURES

Annexure A1             TRUE COPY OF HTTP://WWW.AWBI.IN/AWBI-
                        PDF/RECOLIST_26082022.PDF, THE LIST OF
                        RECOGNIZED ANIMAL WELFARE
                        ORGANIZATIONS AS ON 26.08.2022

Annexure A2             TRUE COPY OF THE MEMORANDUM OF
                        ASSOCIATIONS WITH RULES AND
                        REGULATIONS OF THE STATUTORY SOCIETY
                        FOR THE DISTRICT OF KANNUR TO BE SPCA
                        FROM 05-02-2002
 R.C.R.No.5 of 2013 & con.cases   -: 37 :-




                    APPENDIX OF RCREV. 41/2013


PETITIONER ANNEXURES

Annexure A1             TRUE COPY OF HTTP://WWW.AWBI.IN/AWBI-
                        PDF/RECOLIST_26082022.PDF, THE LIST OF
                        RECOGNIZED ANIMAL WELFARE
                        ORGANIZATIONS AS ON 26.08.2022

Annexure A2             TRUE COPY OF THE MEMORANDUM OF
                        ASSOCIATIONS WITH RULES AND
                        REGULATIONS OF THE STATUTORY SOCIETY
                        FOR THE DISTRICT OF KANNUR TO BE SPCA
                        FROM 05-02-2002

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