Kerala State Civil Supplies ... vs P C Lubeena
2022 Latest Caselaw 8116 Ker

          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

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],

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

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

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

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]

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

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

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

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

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

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

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