IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
R.C.REV.NO. 109 OF 2022
AGAINST JUDGMENT DATED 25.03.2022 IN R.C.A.NO.3 OF 2021 OF
THE RENT CONTROL APPELLATE AUTHORITY AND THE ADDITIONAL
DISTRICT JUDGE - IV, THALASSERY AND AGAINST THE ORDER DATED
20.01.2020 IN R.C.P.NO.6 OF 2015 OF THE RENT CONTROL COURT
(MUNSIFF), PAYYANNUR
REVISION PETITIONER:
KERALA STATE CIVIL SUPPLIES CORPORATION LTD
REPRESENTED BY ITS REGIONAL MANAGER, SUPPLYCO,
REGIONAL OFFICE, JAIL ROAD,PUTHIYARA, KOZHIKODE,
PIN - 673004
BY ADV.
R.LAKSHMI NARAYAN
RESPONDENT:
P C LUBEENA
D/O.P C MUSTHA, AGED 32, RESIDING AT
KUNHIMANGALAM, KUNHIMANGALAM AMSOM DESOM,
P.O.KOVVAPPURAM, KANNUR, PIN - 670309
THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION
ON 01.07.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2
R.C.R No.109 of 2022
ORDER
Ajithkumar, J This revision petition under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 is filed by the respondent- landlord in R.C.P. No.6 of 2015 on the file of the Rent Control Court, Payyannur. The R.C.P. was filed seeking eviction under section 11(3) of the Act by the respondent-landlord. It was allowed. The appeal preferred by the petitioner under Section 18(1)(b) of the Act was dismissed by the Rent Control Appellate Authority (Additional District Judge-IV), Thalassery. Aggrieved by the said judgment and the order, this revision has been filed.
2. When this revision came up for admission today, we heard the learned counsel appearing for the petitioner in detail.
3. The ground on which the respondent seeks eviction is that she, along with her sister, wants to start a business in pardha in the petition schedule shop rooms. They are the landladies. Six shop rooms constitute the tenanted premises. The petitioner Corporation is conducting its retail outlet in the said premises. The petitioner resisted the plea for eviction mainly on three grounds:
1.The petitioner has protection from eviction under the 3 R.C.R No.109 of 2022 provisions of section 11(11) of the Act.
2.The need urged by the respondent is not bonafide, and
3.The respondent is in possession of other vacant rooms which are sufficient for her projected need.
4. Before the Rent Control Court, the respondent had examined PWs 1 and 2 and the petitioner examined RWs 1 and 2. Exts.A1, A2 and B2 were produced.
5. The Rent Control Court after considering the evidence before it came to the conclusion that the respondent was entitled to get an order of eviction on the ground of bona fide need for her own occupation. Before the Appellate Authority, the petitioner raised the same contentions. The Appellate Authority after re appreciating the evidence concluded that there is no reason to interfere with the findings rendered by the Rent Control Court.
6. The learned counsel appearing for the petitioner fairly conceded that the Kerala State Civil Supplies Corporation and its outlets selling consumables or even essential commodities were not notified by the Government as essential services for the purpose of Section 11(11) of the Act. This Court in Velayudhan P.T v U.S.Santhosh Kumar & others [2009(2) KLT 153], 4 R.C.R No.109 of 2022 considered a claim of immunity in respect of a ration depot functioning under the Civil Supplies department from eviction under the provisions of Section 11(11) of the Act. It was held that it was only those tenants who are engaged in any employment or class of employment notified by the Government as an essential service for the purpose of sub-section (11) of Section 11 of the Act who are given immunity from eviction. Here the learned counsel for the petitioner conceded that there is no such notification in respect of the petitioner. Therefore the petitioner does not enjoy immunity from eviction under section 11(11) of the Act.
7. Section 11 of the Act deals with eviction of tenants. As per Section 11(1), notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Act. As per Section 11(3) of the Act, a landlord may apply to the Rent Control Court, for an order directing the tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him. As per the first proviso to Section 11(3), the Rent Control 5 R.C.R No.109 of 2022 Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular case it will be just and proper to do so. As per the second proviso to Section 11(3), the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business.
8. In Adil Jamshed Frenchman v. Sardur Dastur Schools Trust [(2005) 2 SCC 476] the Apex Court reiterated that, as laid down in Shiv Samp Gupta v. Dr. Mahesh Chand Gupta [(1999) 6 SCC 222] a bona fide requirement must be an outcome of a sincere and honest desire in contradistinction with a mere pretext for evicting the tenant on the part of the landlord claiming to occupy the premises for himself or for any member of the family which would entitle the landlord to seek ejectment of the tenant. The question to be asked by a judge of facts by placing 6 R.C.R No.109 of 2022 himself in the place of the landlord is whether in the given facts proved by the material on record the need to occupy the premises can be said to be natural, real, sincere and honest. The concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. As reiterated in Deena Nath v. Pooran Lal [(2001) 5 SCC 705] bona fide requirement has to be distinguished from a mere whim or fanciful desire. The bona fide requirement is in praesenti and must be manifested in actual need so as to convince the court that it is not a mere fanciful or whimsical desire.
9. In Ammu v. Nafeesa [2015 (5) KHC 718] a Division Bench of this Court held that, it is a settled proposition of law that the need put forward by the landlord has to be examined on the presumption that the same is a genuine one, in the absence of any materials to the contra. In Gireeshbabu T. P. v. Jameela and others [2021 (5) KHC SN 30] this Court reiterated that in order to satisfy the requirement of Section 11(3) of the Act, a bona fide need must be an outcome of a sincere and honest desire of the landlord in contradistinction with a mere pretext on the part of the landlord for evicting the tenant, claiming to occupy the premises 7 R.C.R No.109 of 2022 for himself or for any member of his family dependent on him. Once, on the basis of the materials on record, the landlord has succeeded in showing that the need to occupy the premises is natural, real, sincere and honest, and not a ruse to evict the tenant from the said premises, the landlord will certainly be entitled for an order of eviction under Section 11(3) of the Act, of course, subject to the first and second provisos to Section 11(3) of the Act.
10. The respondent is PW1. It is beyond dispute that she, together with her sister, owns the petition schedule shop rooms. Their case is that they are jobless now and they want to start a pardha shop in the petition schedule premises. PW1 deposed in detail regarding that plan. The petitioner assailed the bona fides of the said need saying that they have no experience and that the entire area of six rooms in occupation of the petitioner is absolutely unnecessary for a pardha shop. As its corollary, the petitioner contended that with a view of getting more rent by letting out the premises to somebody else, the respondent initiated the proceedings for eviction.
11. In George T. I. v. K. L. Stanley [2013 (4) KHC 543] 8 R.C.R No.109 of 2022 this Court following a line of decisions held that prior experience is not a prerequisite for a person to start a business. It was held, "The last contention is want of previous experience. Going by the decisions of this Court and the Apex Court, previous experience cannot be insisted to test the bona fide need of the landlord, as it is not a requirement for anybody to conduct a business that he should have previous experience."
12. Therefore prior experience of the landlord is not a requirement for starting a business. Nevertheless, the oral testimony of PW1 and also PW2 who is conducting business in two other rooms belonging to PW1 show that PW1 and her sister have experience in the business.
13. Whether the respondent requires the entire area of six rooms now in possession of the petitioner for the proposed pardha shop is not a matter for the contest by the tenant. It is for the landladies to decide the nature and volume of the business they propose to start. The tenant cannot dictate that the landladies should avail some other space of lesser area for that purpose. Therefore the said contention of the petitioner cannot be countenanced. When both the courts below after detailed 9 R.C.R No.109 of 2022 consideration of the evidence found that the need urged by the respondent is bona fide and the petitioner is not able to point out any reason to establish that the said finding is grossly illegal or perverse, this court in the exercise of its jurisdiction under Section 20 of the Act, cannot interfere with the said finding.
14. Rooms No.22/572 and 573 admittedly belong to the respondent. The petitioner by producing Ext.X2 and through the oral testimonies of RWs 1 and 2 tried to establish that the respondent was in possession of the said rooms where she could start her pardha business. Certainly, once the tenant shows that the landlord is in possession of another building or room in the same city, village or locality, is her burden to furnish special reasons, if she to get an order of eviction.
15. The definite case of the respondent is that rooms bearing doors No.22/572 and 573 were let out to PW2 and a business concern is run by him in those rooms. PW2 deposed in court that he, along with his partner has been running a business in surgical equipments under the name and style 'Bone Surgical' in those rooms. It is his version that though earlier assessed by the local authority with two door numbers, consequent to the removal 10 R.C.R No.109 of 2022 of separating wall in between, now it lies as a single unit with a single door number. It is stated that now its number is 19/888. The Commissioner in Ext.C1 noticed the said number, and also the functioning of such an establishment in that premises.
16. The petitioner tried to prove those rooms were actually lying vacant through the oral testimonies of RWs 1 and 2. They however admitted before the court that they did not have personal and direct knowledge regarding that fact. Taking into account such nature of the evidence, the courts below held that their evidence was totally insufficient to discard the evidence let in by the respondent that the said rooms were in occupation of PW2. The upshot is that there is no evidence to show the availability of any vacant room in the possession of the respondent which can be put to use for the pardha business she proposed to start. Therefore the petitioner cannot claim the benefit of the first proviso to Section 11(3) of the Act.
17. In Rukmini Amma Saradamma v. Kallyani Sulochana [(1993) 1 SCC 499], the scope of revisional powers of the High Court under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 came up for consideration before the 11 R.C.R No.109 of 2022 Three-Judge Bench of the Apex Court. While considering whether the High Court could have re-appreciated entire evidence, the Apex Court held that, even the wider language of Section 20 of the Act cannot enable the High Court to act as a first or a second court of appeal. Otherwise, the distinction between appellate and revisional jurisdiction will get obliterated. Hence, the High Court was not right in re-appreciating the entire evidence both oral or documentary in the light of the Commissioner's report. The High Court had travelled far beyond the revisional jurisdiction. Even by the presence of the word 'propriety' it cannot mean that there could be a re-appreciation of evidence. Of course, the revisional court can come to a different conclusion but not on a re- appreciation of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it.
18. In Hindustan Petroleum Corporation Limited v. Dilbahar Singh [(2014) 9 SCC 78] a Five-Judge Bench of the Apex Court considered the revisional powers of the High Court under Rent Acts operating in different States. After referring to the law laid down in Rukmini Amma Saradamma the Apex Court reiterated that even the wider language of Section 20 of the Kerala 12 R.C.R No.109 of 2022 Buildings (Lease and Rent Control) Act, 1965 does not enable the High Court to act as a first or a second court of appeal. The Constitution Bench agreed with the view of the Three-Judge Bench in Rukmini Amma Saradamma that the word 'propriety' does not confer power upon the High Court to re-appreciate evidence to come to a different conclusion, but its consideration of evidence is confined to find out legality, regularity and propriety of the order impugned before it.
19. In Thankamony Amma v. Omana Amma [AIR 2019 SC 3803 : 2019 (4) KHC 412] after considering the matter in the backdrop of law laid down in Rukmini Amma Saradamma, Ubaiba and Dilbahar Singh (supra) the Apex Court held that when the findings rendered by the courts below were well supported by evidence on record and could not be said to be perverse in any way, the High Court could not re-appreciate the evidence and interfere with the concurrent findings by the courts below while exercising revisional jurisdiction.
20. Viewed in the light of the principles of law laid down in the aforesaid decisions by the Apex court and also this Court, the scope for interference with the findings of the courts below is very 13 R.C.R No.109 of 2022 limited. As long as the petitioner could not show that the findings are illegal, irregular or improper, this court is not expected to invoke the jurisdiction under section 20 of the Act to undo such findings. The revision petition is accordingly dismissed.
21. Learned counsel appearing for the petitioner would submit that since the petitioner is running a retail outlet having a huge volume of business, at least one year is required to shift the same. Therefore the learned counsel seeks to grant one year to surrender vacant possession of the shop rooms.
22. Having considered all the aspects, we deem it appropriate to grant seven months' time to surrender vacant possession of the petition schedule shop room, subject to the following conditions:
(i) The respondent-tenant in the Rent Control Petition shall file an affidavit before the Rent Control Court or the Execution Court, as the case may be, within two weeks from the date of receipt of a certified copy of this order, expressing an unconditional undertaking that he will surrender vacant possession of the petition schedule building to the petitioner- landlord within seven months from the date of this order and that, he shall not induct third parties into possession of the 14 R.C.R No.109 of 2022 petition schedule building and further he shall conduct any business in the petition schedule building only on the strength of a valid licence/permission/ consent issued by the local authority/statutory authorities;
(ii) The respondent-tenant in the Rent Control Petition shall deposit the entire arrears of rent as on date, if any, before the Rent Control Court or the Execution Court, as the case may be, within four weeks from the date of receipt of a certified copy of this order, and shall continue to pay rent for every succeeding months, without any default;
(iii) Needless to say, in the event of the respondent-tenant in the Rent Control Petition failing to comply with any one of the conditions stated above, the time limit granted by this order to surrender vacant possession of the petition schedule building will stand cancelled automatically and the petitioner- landlord will be at liberty to proceed with the execution of the order of eviction.
Sd/-
ANIL K.NARENDRAN, JUDGE Sd/-
P.G. AJITHKUMAR, JUDGE PV