Kerala High Court
C.Ambika vs K.Padmanabhan on 25 March, 2015
Author: K.Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
TUESDAY, THE 20TH DAY OF JUNE 2017/30TH JYAISHTA, 1939
RCRev..No. 244 of 2015 ()
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AGAINST THE JUDGMENT IN RCA 75/2014 of ADDL. D.C. & SESSIONS COURT - V,
KOZHIKODE DATED 25-03-2015
AGAINST THE ORDER IN RCP 117/2007 of ADDL.M.C.,KOZHIKODE-I DATED
31-03-2014
REVISION PETITIONER(S)/1ST APPELLANT/1ST RESPONDENT:
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C.AMBIKA, AGED 63 YEARS,
W/O. ASOKAN, RESIDING AT VAKOLATH THODIYIL,
KASABA AMSOM DESOM, KOZHIKODE.
BY ADVS.SRI.R.SUDHISH
SMT.M.MANJU
RESPONDENT(S)/RESPONDENT AND APPELLANTS 2 TO 4 IN RCA/PETITIONER &
RESPONDENTS 2 TO 4 IN RCP :
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1. K.PADMANABHAN
S/O. NARAYANAN,
RESIDING AT MATHA AMRITHANANDAMAYI MADOM,
AMRITHAPURI, KOLLAM.
2. JIJI
S/O. ASOKAN,
RESIDING AT VAKKOLATH THODIYIL,
KASABA AMSOM DESOM, KOZHIKODE-4
3. SHIJI
S/O. ASOKAN,
RESIDING AT VAKKOLATH THODIYIL,
KASABA AMSOM DESOM, KOZHIKODE-4
4. JISHA
D/O. ASOKAN,
RESIDING AT VAKKOLATH THODIYIL,
KASABA AMSOM DESOM, KOZHIKODE-4
R1 BY ADVS SRI.P.K.SREEDHARAN
SMT.BINDU GEORGE
SRI.P.K.VIJAYAN (CALICUT)
SRI.NIRMAL. S
THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON
20-06-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
IAP
CR
K.HARILAL & P.SOMARAJAN, JJ
.........................................
R.C.R.244 OF 2015
.................................
Dated this the 20th day of June, 2017
O R D E R
P.SOMARAJAN, J The tenant came up with this Rent Control Revision aggrieved by the concurrent findings of both the Rent Control Court and the Rent Control Appellate Authority under Sections 11(2)(b), 11(3), 11 (4)(i) and 11(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act').
2. The need projected in the application is for the own occupation of the landlord to start a book stall. The tenant raised objection mainly on the ground that the petition schedule shop room is not suitable for commencing a book stall because of the running of a beverages outlet just in front of the said shop room. It was also submitted by the learned counsel for the petitioner that it is a place wherein drunkards alone used to come. As such, the running of a book stall in the petition schedule shop room would result in heavy loss. The suitability of a building for the own occupation of the landlord is the prerogative of the landlord, unless it is tainted by malice and ill will.
R.C.R.244 OF 2015 2
3. The question of availability of an alternative accommodation for the landlord under the first proviso to Sec.11(3) of the Act has not been raised as a ground of defence. So, the concurrent findings of both the Rent Control Court and the Rent Control Appellate Authority regarding the bona fides of the need advanced deserves no interference by this Court.
4. Regarding the second proviso to Sec.11(3) of the Act, both the Rent Control Court and the Rent Control Appellate Authority concurrently found in favour of the landlord. Nothing was brought to our notice so as to have an interference with respect to the said findings.
5. The eviction ordered under Section 11(4)(i) of the Act on the ground of sub-lease was mainly disputed on the ground that no exclusive possession was transferred and the tenant is still continuing in possession of the tenanted premises along with some others. It is submitted that now a unit run by Kudumbasree is functioning in the shop room wherein the tenant is also a member. It is found by the Rent Control Court and the Rent Control Appellate Authority that the Commissioner, who visited the property, reported the existence of a name board both inside and outside as that of the Kudumbasree unit who is running business in the name and R.C.R.244 OF 2015 3 style of "Vandanam Vanitha Bhakshanasala". It was also admitted by the tenant that she used to receive an amount of Rs.200/-as daily wages from the Kudumbasree unit on account of the functioning of the Kudumbasree hotel in that premises. Now the question came up for consideration is whether sharing of possession by the tenant with others by inducting strangers into the tenanted premises without diverting exclusive possession of tenanted premises or a portion thereof would attract sublease as envisaged under Section 11(4)(i) of the Act. Section 11(4)(i) of the Act is extracted below for reference.
Sec.11(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,-
(i) if the tenant after the commencement of this Act, without the consent of the landlord, transfers his right under the lease or sub-lets the entire building or any portion thereof if the lease does not confer on him any right to do so.
Provided that an application under this clause shall not be made for the first time in respect of one and the same tenancy unless the landlord has sent a registered notice to the tenant intimating the contravention of the said condition of the lease and the tenant has failed to terminate the transfer or the sub- lease as the case may be, within thirty days of the receipt of the notice or the refusal thereof.
(emphasis supplied)
6. The expression "transfers his right under the lease" and the R.C.R.244 OF 2015 4 expression "sublets the entire building or any portion thereof" are separate and distinctive grounds in nature though there may be overlaping in between these two expressions. The expression "transfers his right under the lease" stands for transfer of a fractional right over the lease or sharing of lease hold right with strangers. Sharing possession of tenanted premises with strangers or inducting strangers into possession by converting exclusive possession into joint possession by the tenant would also come under the expression "transfers his right under the lease" which would attract application of Section 11(4)(i) of the Act. In the present case, the tenant inducted the kudumbasree unit into the shop room and is conducting a joint business, even according to her. This would amount to "transfer of right under the lease". This would show that the tenant has converted her exclusive possession into a joint possession with others. Diverting an exclusive possession and sharing the same with others by the tenant would also come under the expression "sub lease" as incorporated under Section 11(4)(i) of the Act and hence the finding of the Rent Control Court and the Rent Control Appellate Authority does not deserve any interference by this Court.
7. Regarding Sec.11(4)(ii) of the Act, it is admitted that the R.C.R.244 OF 2015 5 separating wall in between two shop rooms were removed with the consent of the landlord. If it is with the consent of the landlord, of course, it cannot be termed as an act in derogation of the right of the landlord reducing the utility and value of the building in question. But, no satisfactory evidence was adduced to prove the consent given by the landlord as alleged by the tenant. Removal of a wall in between the shop rooms would affect the strength and the life span of the building and it would result in material alteration of utility of the building and its value. Removal of a wall in which the roof is resting is danger to the building. No other reason which would attract exercise of the revisional jurisdiction was brought to the notice of this Court and hence this revision fails.
In the result, the revision is dismissed, but a time of one year is granted to the tenant to vacate the premises subject to the condition that he shall submit an unconditional undertaking, within two weeks before the trial court, in the form of an affidavit, to vacate the premises within one year and shall pay the rent arrears, if any, within two weeks and to continue to pay the monthly rent on or before 10th of each month till the date of surrender of possession. In the event of violation of any of the said conditions, the landlord/original petitioner will be at liberty to execute the order of R.C.R.244 OF 2015 6 eviction on expiry of two weeks or any other subsequent date of violation of any of the conditions mentioned above, and the time granted by this Court would stand as cancelled.
This Rent Control Revision is dismissed accordingly.
Sd/-
K.HARILAL JUDGE Sd/-
P.SOMARAJAN JUDGE //True Copy\\ P.A to Judge IAP