Kerala High Court
Appellant/Respondent vs Respondent/Petitioner on 30 June, 2015
Author: K. Ramakrishnan
Bench: P.N.Ravindran, K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
&
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
MONDAY, THE 21ST DAY OF MARCH 2016/1ST CHAITHRA, 1938
RCRev..No. 96 of 2016 ()
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AGAINST THE ORDER/JUDGMENT IN RCA 142/2012 of RENT CONTROL APPELLATE
AUTHORITY,THALASSERY DATED 30-06-2015
AGAINST THE ORDER/JUDGMENT IN RCP 142/2010 of RENT CONTROL COURT,
THALASSERY DATED 14-02-2012
REVISION PETITIONER(S):APPELLANT/RESPONDENT
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PAPPAN MASTER AGED 70 YEARS, S/O. P.K.GOPALAN,
SECRETARY, KAIRALI SAMSKARIKA KENDRA, PRINGALAM,
RESIDING AT SRLAKSHMI, P.O. THIRUVANGAD,
THALASERY TALUK, KANNUR DISTRICT.
BY ADV. SRI.SATHEESHAN ALAKKADAN
RESPONDENT(S):RESPONDENT/PETITIONER
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P.M BALAN, AGED 80 YEARS, S/O. KUNHIKANNAN,
'SURJITH, NETHAJI ROAD, MOORAKUNNU, THALASSERY-670001.
THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON
21-03-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
P.N. Ravindran &
K. Ramakrishnan, JJ.
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R.C.R.No.96 of 2016
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Dated this the 21st March, 2016
O R D E R
K. Ramakrishnan, J.
The respondent/tenant in R.C.P.No.142 of 2010 on the file of the Rent Control Court, Thalassery is the revision petitioner herein. The respondent, as landlord, has filed the application for eviction of the petition schedule building from the possession of the revision petitioner herein on the grounds of sub lease, effecting construction affecting the value and utility of the building and additional accommodation under sections 11(4)(i), 11(4)(ii) and 11(8) of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to as 'the Act' for short. The respondent herein had alleged in the petition that the petition schedule building was let out to an organisation called Kairali Sports, Arts and Vayanasala for running a reading room as per kachit dated 19.7.2003. At the time when the building was let out, one P.K. Jayaprakasan was the secretary. Now the revision petitioner herein is the secretary. The landlord is conducting sale of fertilizers in the neighbouring rooms in the same building and the space occupied by him is not sufficient for running his business. He wants to develop his business and due to lack of space, more stock could not be stored in RCR 96/2016 2 the building. So, he requires the petition schedule building as additional accommodation for running his business. The tenant is not using the petition schedule building for the last more than one year and he had sub let the petition schedule building to third parties and getting higher rent without the consent and knowledge of the landlord/respondent herein. There are other suitable buildings available in the locality for their purpose as well. Further, the tenant had made additional constructions in the petition schedule building without the consent of the landlord which has reduced the utility and value of the building materially and permanently and caused damage to the building. The balavadi cannot be permitted to be conducted in the petition schedule premises as it will cause damage to the building and also affect the health of the children. So, the landlord sent a notice on 10.10.2010 calling upon the tenant to terminate the sub lease and to restore the building to the original position removing the additional construction and vacate the premises on the ground of additional accommodation. The respondent/tenant sent a reply with false allegations alleging that the landlord is in possession of other vacant room and since he demanded exorbitant rent for which the tenant was not amenable, the need has been alleged. Since the tenant did not vacate the premises, the landlord filed the application RCR 96/2016 3 for eviction under sections 11(8), 11(4)(i) and 11(4)(ii) of the Act.
2. The revision petitioner who is the respondent in the court below entered appearance and filed a counter statement admitting the execution of the kachit dated 19.7.2003 by the then Secretary for and on behalf of the vayanasala. They have further contended that the landlord had no intention to expand his business and that has been made as a ruse to evict the tenant from the petition schedule building. He is also having sufficient space in the place where he is now conducting business and some other room is also there in his possession for that purpose. The tenant is using the petition schedule building as a public reading room and so many children and people of the locality are using the said reading room. The allegation of sub lease is not correct. Balavadi is not functioning in the petition schedule building and the tenant is still running the vayanasala in the petition schedule building. There are no other buildings available in the locality and the construction was done with the consent of the landlord and it will not affect the value and utility of the building. So, they prayed for dismissal of the petition.
3. Since there was some mistake in the building number, it was corrected by filing I.A.No.1674 of 2011 as building Nos.15/475 and 15/476 instead of 15/275 and 15/286 mentioned in the petition. The RCR 96/2016 4 respondent filed an additional counter statement denying the allegations in the rent control petition. They also stated that no notice was sent to them to vacate building No.15/474. They disputed the identity of the petition schedule building as well and prayed for dismissal of the petition.
4. In order to prove the case of the landlord, the landlord himself was examined as PW1 and Exts.A1 to A9 were produced and marked on his side. The Advocate Commissioner was examined as PW2 and Exts.C1 and C2 were also marked on his side. The respondent was examined as RW1 and no documentary evidence was marked on his side. After considering the evidence on record, the rent control court found that the additional accommodation sought for is bonafide and no hardship will be caused to the tenant if eviction is ordered and sublease has been established by the landlord and there is material alteration and hence allowed the application under sections 11(4)(i), 11(4)(ii) and 11(8) of the Act. Dissatisfied with the order of eviction passed against the tenant, the tenant filed R.C.A.No.142 of 2012 before the Rent Control Appellate Authority, Thalassery which was made over to Additional District Court-I, Thalassery for disposal and the learned Additional District Judge by the impugned judgment dismissed the appeal. Aggrieved by the same, the present appeal has RCR 96/2016 5 been preferred.
5. Heard Shri Satheesan Alakkadan, learned counsel appearing for the revision petitioner.
6. Learned counsel appearing for the revision petitioner submitted that the commissioner's report will go to show that the balavadi is not being conducted in the petition schedule building but it is in the neighbouring building and sub lease is not established. They are conducting a reading room in the petition schedule building. Learned counsel also submitted that the landlord is in possession of another room and there is no need for any additional accommodation. They further submitted that the additional construction, if any, made to the petition schedule building, had only improved the value of the building and not reduced its value and utility permanently and materially. So, the courts below were not justified in ordering eviction on al grounds.
7. The case of the landlord in the rent control petition was that the petition schedule building was let out to Kairali Sports, Arts and Vayanasala and it was taken on rent by the then Secretary of the organisation as per Ext.A1 kachit for running a reading room in the building. The landlord is conducting business in fertilizers in the adjacent rooms in the same building. He wants to expand his business RCR 96/2016 6 and the space available is not sufficient for that purpose. So, he wants additional accommodation. The petition schedule building was sublet to third party by the tenant and they had made additional construction without the consent of the landlord. These allegations were denied by the tenant.
8. The petitioner/landlord when examined as PW1, had deposed about the factum of conducting business in the neighbouring rooms of the petition schedule building and also deposed about the need for expansion of his business for which he requires additional accommodation. The landlord had taken out a commission and the Commissioner was examined as PW2. Exts.C1 and C2 marked through him, will go to show that rooms available with the landlord in which he is conducting business in fertilizers is not sufficient for his purpose and more area is required for storing fertilizes. The Commissioner also deposed that the room which is said to be in the possession of the landlord is a stair case room which cannot be used for this purpose. The fact that the landlord is in possession of a stair case room through which the stair case to the upstairs is provided, is not disputed. The fact that he is conducting a fertilizer business in the neighbouring rooms in the same building is also admitted by the tenant. Further, for the purpose of claiming eviction under section 11(8) of the Act, the RCR 96/2016 7 landlord need not prove dire necessity. Even a luxurious demand for expanding the business can be considered as a bonafide need if it is found bonafide. The tenant cannot dictate the landlord to occupy the portion where he is conducting the business and he will have to satisfy with the same for his business purpose and cannot claim eviction on the ground of additional accommodation. Further, it is brought out in evidence that there are other rooms available in the locality and this fact was not seriously disputed also. It is also evident that the tenant did not make any enquiry regarding the same also. So, the protection under section 11(10) of the Act is not applicable in this case. So, the rent control court and the appellate authority were perfectly justified in coming to the conclusion that the need alleged by the landlord for additional accommodation under section 11(8) of the Act was bonafide and the hardship will be less to the tenant when compared to the advantages in favour of the landlord, if an order of eviction is passed, as required under section 11(10) of the Act and rightly ordered eviction under section 11(8) of the Act.
9. As regards sub lease is concerned, the Commissioner's report coupled with the evidence of PW2 will go to show that no activity was being done in the petition schedule building and except keeping a shelf, there are no books or periodicals available in the room. Further, RCR 96/2016 8 PW2 had also found that children were playing in the petition schedule room and this room is being used to go to the balavadi that is being conducted in the nearby building. The Commissioner's report will show that the tenant is not occupying the petition schedule building and he is not doing anything in the said room. Though RW1 had stated that they are conducting a reading room, he had admitted that they had not produced any documents to show that they had purchased any periodicals and also maintaining any accounts regarding the same as well. Though they contended that they are in possession of the same, nothing was produced in this court also to prove this fact. If it is a registered library, grant will be available under the Granthasala Act and no document has been produced to show those payments. Once the landlord has proved that a person other than the tenant is in possession of the petition schedule building and they are occupying the same and using it, the burden is on the tenant to prove the jural relationship. The mere denial is not sufficient to escape from an order of eviction under section 11(4)(i) of the Act. Even after sending the notice, they denied the fact of sub lease and when the application was filed, a third party was in occupation of the petition schedule building and the tenant is not using it as a vayanasala. So, the rent control court and the appellate authority were perfectly justified in coming to RCR 96/2016 9 the conclusion that the tenant had sub let the petition schedule building and the landlord is entitled to get eviction under section 11(4)
(i) of the Act and the concurrent findings of fact on these aspects do not call for any interference.
9. It has also come out in evidence that the tenant had constructed an additional structure in the petition schedule building without the consent of the landlord. It has also come out in evidence that no permission has been obtained for the purpose of making such constructions. It is seen from the evidence of PW2 that the said construction has been made in such a way as to affect its utility and the purpose for which it has been constructed by the landlord. Further, the additional construction made to the building has to be considered from the angle of the need of the landlord for which he had constructed the building. If it is not suitable for the purpose of the landlord, it will amount to material alteration affecting the value and utility of the building permanently and materially. So, the rent control court and the appellate authority were justified in coming to the conclusion that the additional construction was made without the consent of the landlord and that the additional construction made, has affected the value and utility of the building materially and permanently and rightly ordered eviction under section 11(4)(ii) of the RCR 96/2016 10 Act. We do not find any reason to interfere with the concurrent findings of fact on these aspects as well and the courts below were perfectly justified in ordering eviction on all the three grounds.
The revision petition therefore fails and is liable to be dismissed. We do so. However, considering the circumstances, we feel that some time can be granted to the revision petitioner/tenant to vacate the petition schedule premises. So, three months time is granted to the revision petitioner to surrender vacant possession of the petition schedule schedule premises. He is directed to surrender vacant possession of the petition schedule building on or before 21.6.2016 and time will be granted on condition that he or the authorised person of the organisation shall file an undertaking in the form of an affidavit before the rent control court or before the execution court if any execution petition is pending, that he/they will vacate the premises within the time provided by this court without any objection and on further condition that he/they will deposit the arrears of rent, if any, within one month and also continue to pay the rent at the rate agreed between the parties till he/they vacate the premises as directed by this court. He/they shall further undertake that he/they will not induct strangers in the petition schedule building or alienate, sub let or commit any act of waste therein. The undertaking shall be filed within RCR 96/2016 11 a period of three weeks from today. If the undertaking is not filed within that time, then the revision petitioner is not entitled to the benefit of extension of time to surrender the building as directed by this court.
The revision petition is dismissed with the above directions and observations.
( P.N. Ravindran, Judge) (K. Ramakrishnan, Judge) kav/