Kerala High Court
Bharat Sanchar Nigam Limited vs Bharat Sanchar Nigam Limited on 2 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
&
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
TUESDAY, THE 02ND DAY OF MARCH 2021 / 11TH PHALGUNA, 1942
RCRev..No.135 OF 2020
AGAINST THE JUDGMENT OF RENT CONTROL APPELLATE AUTHORITY/II
ADDITIONAL DISTRICT COURT, KOZHIKODE IN RCA 67/2019 DATED
24-02-2020.
ORDER OF THE RENT CONTROL COURT (MUNSIFF) NADAPURAM IN RCP
39/2018 DATED 27-03-2019.
REVISION PETITIONER/APPELLANT/RESPONDENT :
BHARAT SANCHAR NIGAM LIMITED,
REPRESENTED BY THE GENERAL MANAGER,
TELECOM, B.S.N.L, TELECOM DISTRICT,
KOZHIKODE DISTRICT.
BY ADVS.
SRI.R.SUDHISH
SMT.M.MANJU
RESPONDENTS/RESPONDENTS/PETITIONERS :
1 KUYYALIL NAJMA, AGED 32 YEARS,
D/O. K.K KUNHABDULLA, DOCTOR,
KAYAKKODI AMSOM, DEVARKOVIL DESOM P.O,
VADAKARA TALUK, KOZHIKODE 673 508
2 KUYYALIL NAJNA, AGED 27 YEARS,
D/O. K.K KUNHABDULLA, DOCTOR,
KAYAKKODI AMSOM, DEVARKOVIL DESOM P.O,
VADAKARA TALUK, KOZHIKODE 673 508
R1-2 BY ADV. SRI.ZUBAIR PULIKKOOL
R1-2 BY ADV. SHRI.BALAGOPALAN P.
R1-2 BY ADV. SHRI.ARUNKUMAR P.
THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON
02.03.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
R.C.R No.135 of 2020 2
A.HARIPRASAD & ZIYAD RAHMAN A.A., JJ.
-------------------------------------
R.C.R No.135 of 2020
-------------------------------------
Dated this the 2nd day of March, 2021.
ORDER
A.HARIPRASAD, J
In this petition, Bharat Sanchar Nigam Limited (in short 'BSNL'),
a Government owned company challenges the concurrent findings by the
Rent Control Court and the Appellate Authority, constituted under the
Kerala Buildings (Lease and Rent Control) Act, 1965 (in short 'the Act')
ordering to evict the revision petitioner under Section 11(3) of the Act for
the bonafide need of the respondents/landlords.
2. Heard the learned Standing counsel for the revision petitioner
and the learned counsel appearing for the respondents.
3. Short facts, necessary for disposal of the revision, are as follows :
Petition schedule building belongs to parents of the respondents.
While the building was outstanding in title with the parents of the
respondents, the building was let out to the revision petitioner for
conducting a telephone exchange. The lease was on 17-05-2005 for a
monthly rent of Rs.13,225/-. Rent was subsequently enhanced to
Rs.21,000/-. Thereafter, respondents' parents settled the building in their
name. Respondents' father was a Gynaecologist in Government service. After
his retirement, the petitioners and their father together intent to start a
nursing home in the petition schedule building. They bonafide require the
building for their occupation.
4. The revision petitioner in its counter statement admitted the
terms of tenancy. According to the revision petitioner, telephone exchange is
an essential service. There are 1,226 land line connections and 429
broadband connections. Apart from that, 11 leased circuits are also provided
from the exchange. They also provide service to various banks and ATMs
centres. Therefore, the revision petitioner is not liable to be evicted.
5. The trial court examined PW1 and RW1 and also marked
Exts.A1 and A2 and Exts.B1 and B2. After considering the rival contentions
and evidence adduced, the trial court allowed the request by the respondents
for eviction under Section 11(3) of the Act. The trial court meticulously
analysed the plea raised by the revision petitioner under Section 11(11) of
the Act.
6. Appellate Authority also, on re-appreciation of the evidence,
agreed with the trial court and confirmed the order of eviction.
7. Learned Standing counsel for the revision petitioner submitted
that the authorities below erred in not appreciating the contention raised by
the revision petitioner regarding non evictability claimable under Section
11(11) of the Act.
8. Section 11(11) of the Act reads as follows :
Notwithstanding anything contained in sub-sections
(1) to (10) no order for eviction or for putting the
landlord in possession shall be passed,-
(i) against any tenant who is engaged in any
employment or class of employment notified by the
Government as an essential service for the purpose of
this sub-section, unless the landlord is himself engaged
in any employment or class of employment which has
been so notified, and the landlord requires the building
for his own occupation : or
(ii) in respect of any building which has been let for
use as an educational institution, and is actually being
used as such, provided that the institution has been
recognised by the Government or any authority
empowered by them in this behalf, so long as such
recognition continues. "
9. On a perusal of the above provision, it will be evident that the
sub sections 1 to 10 of Section 11 become inoperative only when the State
Government notifies the avocation of the tenant, who is engaged in an
employment or class of employment as an essential service for the purpose
of Section 11(11) of the Act. In other words, without a notification by the
State Government declaring a particular employment or class of
employment as an essential service, the benefit of the above provision cannot
be claimed by the tenant. Our attention has been drawn to Entry No.18 to
List II - State list, in the 7th schedule to the Constitution of India. According
to the above Entry, all laws relating to landlord and tenant is a State subject.
It is therefore clear that the revision petitioner cannot take shelter under
Section 11(11) of the Act without an enabling notification by the State
Government to raise such a plea.
10. Learned Standing counsel for the revision petitioner vehemently
argued that BSNL is a Government owned company functioning for public
good. Even if that be so, we are of the view that the revision petitioner
company cannot claim any immunity from eviction in the light of the
empowerment of the State Government by the statute to notify the
company's business as an essential service.
11. It is also clear that the revision petitioner, being a Government
owned company, cannot dispute the claims raised by the landlords, who are
private parties and therefore, the bonafide need set up by them remain
unchallenged. Having regard to the entire facts and circumstances, we find
that the order of eviction passed by the authorities below is legally proper.
We find no reason to interfere in the order of eviction passed by the court
below.
Having regard to the fact that the revision petitioner is a
Government owned company engaged in telecommunication business and
providing service to various citizens in and around the area, we are of the
view that the appellant company shall be permitted to occupy the building
for a period of one year from today.
In the result, the revision petition is dismissed, affirming the
orders of eviction. However, the revision petitioner shall be allowed to
occupy the premises for a period of one year from today on fulfilling the
following conditions :
The General Manager, Telecom, BSNL, Kozhikode shall file an
affidavit before the Rent Control Court within one month that they will
vacate the premises within a period of one year.
The revision petitioner shall continue to pay compensation for use and
occupation of the building at the contractual rate during the period in
which they occupy the premises.
All interlocutory applications will stand dismissed.
A.HARIPRASAD,
JUDGE
ZIYAD RAHMAN A.A.,
amk JUDGE
