Kerala High Court
Kozhiparambath Mydhili ... vs Al Rahaba Builders Private ... on 1 June, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
WEDNESDAY, THE 1ST DAY OF JUNE 2022 / 11TH JYAISHTA, 1944
R.C.REV.NO. 125 OF 2019
AGAINST THE JUDGMENT DATED 27.11.2018 IN R.C.A.NO.28 OF 2018
OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT
JUDGE-IV), KOZHIKODE AND THE ORDER DATED 22.01.2012 IN
R.C.P.NO.119 OF 2012 OF THE RENT CONTROL COURT (MUNSIFF-I),
KOZHIKODE
REVISION PETITIONERS:
1 KOZHIPARAMBATH MYDHILI BHASKARAN
AGED 73 YEARS, W/O. LATE BHASKARAN, KACHERI AMSOM
AND DESOM, P.O. NADAKKAVU, KOZHIKODE-673 011.
2 KOZHIKPARAMBATH MURALEEDHARAN
AGED 51 YEARS, S/O. LATE BHASKARAN, KACHERI AMSOM
AND DESOM P.O, NADAKKAVU, KOZHIKODE-673 011.
3 KOZHIPARAMBATH MANOJKUMAR,
AGED 46 YEARS, S/O. LATE BHASKARAN, KACHERI AMSOM
AND DESOM, P.O. NADAKKAVU, KOZHIKODE-673 011.
4 KOTTAYIL RENUKA PRADEEP
AGED 50 YEARS, D/O. LATE BHASKARAN, CHEVAYUR AMSOM
AND DESOM, P.O. CHEVAYUR, KOZHIKODE-673 017.
5 KOZHIPARAMBATH ANANDHAKUMAR,
AGED 60 YEARS, S/O. LATE KUMARAN, KACHERI AMSOM
DESOM, P.O. NADAKKAVU, KOZHIKODE-673 011.
6 SATHEESH,
AGED 62 YEARS, S/O. BHASKARAN, RESIDING AT SAJITHA
NIVAS, GREEN HOUSE, P.O. PUTHIYARA, KASABA AMSOM
DESOM, KOZHIKODE-673 004.
7 NITHEESH K.,
AGED 33 YEARS, S/O. SOBHA, RESIDING AT SAJITHA
NIVAS, GREEN HOUSE, P.O.PUTHIYARA, KASABA AMSOM
DESOM, KOZHIKODE-673 004.
2
R.C.Rev.No.125 of 2019
8 PRATHEESH K.,
AGED 31 YEARS, S/O. SOBHA, RESIDING AT SAJITHA
NIVAS, GREEN HOUSE, P.O. PUTHIYARA, KASABA AMSOM
DESOM, KOZHIKODE-673 004.
9 K.P. SABITHA,
W/O. KUMARAN, RESIDING AT ANANDHAM, DAIVATHUMKAVU
PARAMBA, P.O. KOTTOOLI, KOTTOOLI AMSOM DESOM,
KOZHIKODE-673 106.
10 MINI VINOD,
AGED 52 YEARS, D/O. KUMARAN, RESIDING AT VETTADA
HOUSE, PUTHIYAPALAM P.O, PUTHIYARA, KOZHIKODE-673
004.
11 K.P. VINODKUMAR,
AGED 50 YEARS, S/O. KUMARAN, RESIDING AT
KOZHIPARAMBATH HOUSE, NEAR CSI HOSTEL, POTTANGADI
ROAD, KOZHIKODE-673 001.
BY ADVS.
V.V.SURENDRAN
SRI.P.A.HARISH
RESPONDENTS:
1 AL RAHABA BUILDERS PRIVATE LIMITED
REPRESENTED BY MANAGING DIRECTOR T. ANTHUMAYI, S/O.
THAYAL MAMMOONHI, AGED 64 YEARS, AJANNUR AMSOM
DESOM, P.O. MANIKOTH, HOSDURG TALUK-671 531.
2 K.P. SANTHOSH KUMAR,
AGED 48 YEARS, S/O. KUMARAN, RESIDING AT SNEHARAG,
BEHIND CENTRAL SCHOOL, KARAPARAMBA, KACHERI AMSOM
DESOM, KOZHIKODE TALUK-673 010.
BY ADVS.
SRI.B.KRISHNAN
SRI.R.PARTHASARATHY
THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL
HEARING ON 23.05.2022, THE COURT ON 01.06.2022 DELIVERED THE
FOLLOWING:
3
R.C.Rev.No.125 of 2019
ORDER
Ajithkumar, J.
R.C.P.No.119 of 2012 was filed by the 1st respondent-landlord
before the Rent Control Court (Munsiff-I), Kozhikode, seeking
eviction of the petitioners and the 2 nd respondent, who are the
tenants in the petition schedule shop room, under Section 11(2)(b),
11(3) and 11(4)(ii) of the Kerala Buildings (Lease and Rent Control)
Act, 1965. The Rent Control Court as per order dated 22.01.2012
ordered eviction under Section 11(2)(b) and 11(3), while rejecting
the plea for eviction under Section 11(4)(ii) of the Act. The
petitioners preferred an appeal before the Rent Control Appellate
Authority (Additional District Judge-IV), Kozhikode as R.C.A.No.28
of 2018 invoking the provisions of Section 18(1)(b) of the Act. The
appeal was dismissed. Hence, this Revision Petition has been filed
under Section 20 of the Act.
2. On 20.03.2019, while ordering notice to the
respondents, this Court stayed the execution proceedings in
R.C.P.No.119 of 2012 for a period of two weeks. The order of stay
was extended from time to time and is still in force.
3. Heard the learned counsel appearing for the petitioners
and the learned counsel appearing for the 1st respondent.
R.C.Rev.No.125 of 2019
4. Eviction ordered by the Rent Control Court under Section
11(2)(b) as well as Section 11(3) of the Act was confirmed by the
Appellate Authority. However, the petitioners deposited the entire
arrears of rent, and therefore, the order of eviction under Section
11(2)(b), for the reason of arrears of rent, lost significance in the
light of the provisions under Section 11(2)(c) of the Act.
5. The need urged by the 1st respondent, which is a private
limited company, is that the petition schedule shop rooms in the
occupation of the petitioners is in a dilapidated condition and it is to
be demolished in order to provide a convenient access to the multi-
storied building proposed to be constructed by the 1 st respondent in
the 20 cents of land behind the said room. The 1 st respondent by
producing Ext.A9 building permit and plan obtained from the
Kozhikode Corporation and through the oral testimony of PW1, who
is the Managing Director of the 1 st respondent, attempted to
establish that the need urged was a bona fide one. The petitioners
resisted the claim by contending that convenient access to the
proposed construction is already available along the open area on
the southern side and the demand for demolition of the petition
schedule shop room lacks bona fides. The petitioners further
contended that the room on the southern side of the petition
R.C.Rev.No.125 of 2019
schedule shop rooms is in the possession of the 1 st respondent and
if more wide access is required, demolition of that room will serve
the purpose.
6. A preliminary objection was raised by the petitioners that
the 1st respondent is a company, whereas Ext.A9 building permit
was obtained in the name of PW1 in his personal capacity, and
therefore, the need put forward by the 1 st respondent company is
unsustainable. This contention was explained away by the Appellate
Authority. Exts.A2 and A3 are the sale deeds by virtue of which the
1st respondent purchased the properties in question. PW1, being the
Managing Director, obtaining a building permit in his name, can
only be described for and on behalf of the company. Therefore, it
cannot be found any inconsistency in obtaining the building permit
in the name of PW1 and that, at any rate, it is not a reason to
doubt the case of the 1st respondent.
7. The learned counsel appearing for the 1 st respondent
would submit that the building as per Ext.A9 is nearing completion
and providing convenient access to the building after demolishing
the petition schedule shop room is a necessary requirement.
Exts.C1 and C2 are reports submitted by the Commissioners.
Ext.C2(a) is a plan containing all details of the structures now
R.C.Rev.No.125 of 2019
existing in the property in the possession of the 1 st respondent.
Retaining the petition schedule shop room as such, the maximum
width of the access possible to the 20 cents of land, where the new
multi-storied building is being constructed, is 7.70 meters. For that,
the existing structure other than the petition schedule shop room is
to be demolished. The learned counsel appearing for the 1 st
respondent submitted that, as can be seen from Ext.C2(a), the
width of the petition schedule premises (CD + EF) is 9 meters and
if that also is demolished, a reasonably wide access can be had to
the proposed building.
8. The learned counsel appearing for the petitioners, little
deviating from the above point, submitted that the purpose of
providing access is to the new building, which is intended to be
used for commercial purpose by letting out the rooms and hence
the 1st respondent would not be entitled to claim eviction under
Section 11(3) of the Act. It is his contention that when the newly
constructed building would be let out to others, there is no question
of the 1st respondent-landlord occupying the tenanted premises,
even taking that the area occupied by the same is proposed to be
provided as an access. The said contention involves two aspects.
Firstly, whether the landlord is entitled to claim eviction of a
R.C.Rev.No.125 of 2019
building for the sole purpose of putting the land where it is situated
for the use of an access, under Section 11(3) of the Act. Secondly,
the demolition of the building is sought being for the purpose of
putting up a new construction, should not it be on the ground of
reconstruction under Section 11(4)(iv) of the Act.
9. The learned counsel appearing for the petitioner pointed
out that in A.S.Parvathy Krishnan v. Jose and others [2007
(4) KLT 1062], this Court took the view that when eviction of a
building is sought only for the purpose of demolition and using the
land where it is situate as an access, the same cannot be a ground
for eviction under Section 11(3) of the Act. In the said decision, this
Court held that the word 'occupation' in Section 11(3) has to be
given a liberal construction. The contention raised in that case was
that the access to be provided after demolition of the tenanted
premises was intended to be used by the tenants in another
building of the landlord. The tenant contended that such need
cannot be a reason for eviction under Section 11(3) of the Act. The
Court did not accept that contention and held that if the need put
forward is bona fide, the mere fact that the pathway made after
demolition of the building would be used by several persons,
including the landlord, or by his tenants, would not take the need
R.C.Rev.No.125 of 2019
out of the purview of Section 11(3) of the Act. In Gopalakrishnan
K. v. K.Maqbool Sha [2019 (4) KHC 521] this Court has
considered whether eviction of a tenant can be claimed under
Section 11(3) of the Act for the purpose of using the land by the
landlord after demolition of the tenanted premises. After referring
to the decision of the Apex Court in Kunhamma v. Akkali
Purushothaman [(2007) 11 SCC 181], this Court held that "the
principle that a landlord can secure eviction of a tenant under
Section 11(3) of the Act to demolish an existing structure for
providing a pathway to a property or building of his own falls within
the ground under Section 11(3) of the Act is no more res intergra."
10. The principle laid down in Gopalakrishnan (supra) and
every other previous decisions on the point were referred to by this
Court in Haridasan K. and others v. P.K.Mohanan and others
[2021 (3) KHC 365] and then held that when the landlord claims
eviction of a tenant with the object of demolishing the tenanted
premises and utilise the said portion of the land also for
construction of a new building, it may be a case of reconstruction
coming under Section 11(4)(iv) of the Act. Whereas, if the land
occupied by the tenanted premises is not required for satisfying the
mandatory conditions for carrying out the new construction in the
R.C.Rev.No.125 of 2019
contiguous piece of land, the same can come only under Section
11(3) of the Act. In view of that matter, we are of the view that the
contention of the petitioners is untenable. The 1 st respondent is well
within its right to claim eviction of the petitioners on the ground of
bona fide need.
11. The Appellate Authority considered the evidence on
record in great detail and had come to the conclusion that the need
of the 1st respondent to provide wide access, making use of also the
area occupied by the tenanted premises along with 7.70 meters
entrance on its southern side, which includes the area occupied by
the dilapidated rooms already in the possession of the 1 st
respondent is a genuine need. When a new multi-storied building is
constructed, it is only reasonable for the landlord to provide
sufficiently wide access to the same for the beneficial enjoyment of
the building. It can be seen from Ext.C2(a) that the buildings
belonging to a few others occupy some portion of the road frontage
of the land belonging to the 1st respondent. That is not a relevant
aspect. What one can aspire to is to get his property and not of
others. Therefore there is nothing unusual for the 1 st respondent to
demand demolition of the petition schedule shop room, so as to get
maximum possible exposure for the building. Taking all such
R.C.Rev.No.125 of 2019
matters into account, we are of the view that the findings entered
into by the courts below that the need urged by the 1 st respondent
is bona fide, is supported by sufficient evidence and sustainable in
law. There is no reason to interfere with the said finding on the
ground of illegality, irregularity or impropriety.
12. In the facts and circumstances of this case, the first
proviso to Section 11(3) of the Act can have no application. The
petitioner set forth a claim based on the second proviso to Section
11(3) of the Act. It is in evidence that petitioners 2 and 5 are
conducting a Sarbath business in the petition schedule room. RW1
deposed that Rs.1,500/- is the net profit they are getting a day. If
that is the income the volume of business would be large and the
petitioners are expected to maintain accounts regarding the same.
Not only the records pertaining to the business activities in the
petition schedule shop rooms, but also any evidence, either oral or
documentary, relating to income regarding any of the petitioners is
produced before the court. The oral testimony of RW1 alone is
insufficient to find that the petitioners are depending for their
livelihood on the income derived from the business in the petition
schedule shop room alone.
13. With respect to the availability of alternative
R.C.Rev.No.125 of 2019
building/rooms in the locality, evidence in the nature of the report
of the Commissioner and the oral testimony of PW1 has come on
record. The petitioners did not venture to explain regarding the
non-availability of any of the rooms pointed out by the
Commissioner or PW1. In the circumstances, we are of the view
that the petitioners did not succeed in proving that they are entitled
to get the benefit of the second proviso to Section 11(3) of the Act.
In the said circumstances, we hold that the concurrent finding of
the authorities below that the petitioners are liable to surrender
vacant possession of the petition schedule shop rooms to the 1st
respondent under Section 11(3) of the Act is not liable to be
interfered with by this Court in exercise of the revisional jurisdiction
under Section 20 of the Act. Therefore, this revision is dismissed.
14. At the time of pronouncement of the Order, the learned
learned counsel for the petitioners has made a request to afford
five months' time for vacating the petition schedule shop room
pointing out the difficulty in finding out another room and making
necessary arrangements for shifting the business. The learned
counsel for the 1st respondent is agreeable to grant the same.
15. Having considered all the aspects, we deem it
appropriate to grant five months' time to surrender vacant
R.C.Rev.No.125 of 2019
possession of the petition schedule shop room, subject to the
following conditions:
(i) The respondents-tenants 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 they will surrender vacant
possession of the petition schedule shop room to the
petitioner-landlord within five months from the date of this
order and that, they shall not induct third parties into
possession of the petition schedule shop room and further
they shall conduct any business in the petition schedule shop
room only on the strength of a valid licence/permission/
consent issued by the local authority/statutory authorities;
(ii) The respondents-tenants 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;
R.C.Rev.No.125 of 2019
(iii) Needless to say, in the event of the respondents-tenants 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 shop
room 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
dkr
