Kerala High Court
Sam Sujendra Kumar vs B.Rajendrababu @ Babu Rajendran on 29 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 29TH DAY OF JUNE 2022 / 8TH ASHADHA, 1944
R.C.REV. NO. 124 OF 2016
AGAINST THE JUDGMENT DATED 23.01.2016 IN R.C.A.NO.60 OF
2014 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL
DISTRICT JUDGE-IV), THIRUVANANTHAPURAM AND THE ORDER DATED
31.10.2014 IN R.C.P.NO.71 OF 2013 OF THE RENT CONTROL COURT
(ADDITIONAL MUNSIFF), THIRUVANANTHAPURAM
REVISION PETITIONERS:
1 SAM SUJENDRA KUMAR
AGED 52 YEARS,S/O.DAVIS,
RESIDING AT S.P.COTTAGE, RAMESWARAM WARD,
AMARAVILA P.O., NEYYATTINKARA.
2 PRAMEELA SAM SUJENDRA KUMAR,
AGED 42 YEARS,W/O.SAM SUJENDRA KUMAR,
RESIDING AT S.P.COTTAGE, RAMESWARAM WARD,
AMARAVILA P.O., NEYYATTINKARA.
BY ADV SRI.G.S.REGHUNATH
RESPONDENT:
B.RAJENDRABABU @ BABU RAJENDRAN
AGED 72 YEARS,T.C. 5/544, KOWDIAR WARD,
PEROORKADA P.O., THIRUVANANTHAPURAM - 695 003.
BY ADVS.
SHRI.AJIT G ANJARLEKAR
SRI.RAM MOHAN.G.
SRI.G.P.SHINOD
THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL
HEARING ON 02.06.2022, ALONG WITH R.C.Rev.NO.126/2016 AND
CONNECTED CASES, THE COURT ON 29.06.2022 DELIVERED THE
FOLLOWING:
2
R.C.Rev.Nos.124, 126, 127,
128 & 134 of 2016
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 29TH DAY OF JUNE 2022 / 8TH ASHADHA, 1944
R.C.REV.NO. 126 OF 2016
AGAINST THE JUDGMENT DATED 23.01.2016 IN R.C.A.NO.61 OF
2014 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL
DISTRICT JUDGE-IV), THIRUVANANTHAPURAM AND THE ORDER
DATED 31.10.2014 IN R.C.P.NO.59 OF 2013 OF THE RENT
CONTROL COURT (ADDITIONAL MUNSIFF), THIRUVANANTHAPURAM
REVISION PETITIONERS:
1 SAM SUJENDRA KUMAR
AGED 52 YEARS, S/O.DAVIS,
RESIDING AT SP COTTAGE, RAMESWARAM WARD,
AMARAVILA PO, NEYYATTINKARA.
2 PRAMEELA SAM SUJENDRA KUMAR,
AGED 42 YEARS, W/O.SAM SUJENDRA KUMAR,
RESIDING AT SP COTTAGE, RAMESWARAM WARD,
AMARAVILA PO, NEYYATTINKARA.
BY ADV SRI.G.S.REGHUNATH
3
R.C.Rev.Nos.124, 126, 127,
128 & 134 of 2016
RESPONDENT:
GANGADHARA PANICKER
AGED ABOUT 81 YEARS, TC 5/547, 548 & 549,
KOWDIAR WARD, PEROORKADA PO,
THIRUVANANTHAPURAM, RESIDING AT GANGADHARA
MANDIRAM, KAWDIAR GARDEN, PEROORKADA,
THIRUVANANTHAPURAM-695 003.
BY ADVS.
SRI.RAM MOHAN.G.
SRI.G.P.SHINOD
THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL
HEARING ON 02.06.2022, ALONG WITH R.C.Rev.NO.124/2016 AND
CONNECTED CASES, THE COURT ON 29.06.2022 DELIVERED THE
FOLLOWING:
4
R.C.Rev.Nos.124, 126, 127,
128 & 134 of 2016
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 29TH DAY OF JUNE 2022 / 8TH ASHADHA, 1944
R.C.REV. NO. 127 OF 2016
AGAINST THE JUDGMENT DATED 23.01.2016 IN R.C.A.NO.59 OF
2014 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL
DISTRICT JUDGE-IV), THIRUVANANTHAPURAM AND THE ORDER
DATED 31.10.2014 IN R.C.P.NO.72 OF 2013 OF THE RENT
CONTROL COURT (ADDITIONAL MUNSIFF), THIRUVANANTHAPURAM
REVISION PETITIONERS:
1 SAM SUJENDRA KUMAR
AGED 52 YEARS, S/O.DAVIS,
RESIDING AT.S.P.COTTAGE, RAMESWARAM WARD,
AMARAVILA PO, NEYYATTINKARA.
2 PRAMEELA SAM SUJENDRA KUMAR
AGED 42 YEARS, W/O.SAM SUJENDRA KUMAR,
RESIDING AT S.P.COTTAGE, RAMESWARAM WARD,
AMARAVILA PO, NEYYATTINKARA.
BY ADV SRI.G.S.REGHUNATH
RESPONDENTS:
1 B. PRASANNA KUMARI
AGED ABOUT 63 YEARS, W/O.SREEDHARAN,
T.C.5/545, KAWDIAR WARD, PEROORKADA PO,
THIRUVANANTHAPURAM - 695 003.
5
R.C.Rev.Nos.124, 126, 127,
128 & 134 of 2016
2 NISHA,
AGED 43 YEARS, D/O.K.SREEDHARAN,
T.C.5/545, KAWDIAR WARD, PEROORKADA PO,
THIRUVANANTHAPURAM - 695 003.
3 DEEPA,
AGED ABOUT 42 YEARS, D/O.K.SREEDHARAN,
T.C.5/545, KAWDIAR WARD, PEROORKADA PO,
THIRUVANANTHAPURAM - 695 003.
4 DIVYA,
AGED ABOUT 41 YEARS, D/O.K.SREEDHARAN,
T.C.5/545, KAWDIAR WARD, PEROORKADA PO,
THIRUVANANTHAPURAM - 695 003.
BY ADVS.
SHRI.AJIT G ANJARLEKAR
SRI.RAM MOHAN.G.
SRI.G.P.SHINOD
THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL
HEARING ON 02.06.2022, ALONG WITH R.C.Rev.NO.124/2016 AND
CONNECTED CASES, THE COURT ON 29.06.2022 DELIVERED THE
FOLLOWING:
6
R.C.Rev.Nos.124, 126, 127,
128 & 134 of 2016
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 29TH DAY OF JUNE 2022 / 8TH ASHADHA, 1944
R.C.REV.NO. 128 OF 2016
AGAINST THE JUDGMENT DATED 23.01.2016 IN R.C.A.NO.62 OF
2014 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL
DISTRICT JUDGE-IV), THIRUVANANTHAPURAM AND THE ORDER
DATED 31.10.2014 IN R.C.P.NO.66 OF 2013 OF THE RENT
CONTROL COURT (ADDITIONAL MUNSIFF), THIRUVANANTHAPURAM
REVISION PETITIONERS:
1 SAM SUJENDRA KUMAR,
AGED 52 YEARS, S/O. DAVIS,
RESIDING AT S.P.COTTAGE, RAMESWARAM WARD,
AMARAVILA P.O., NEYYATTINKARA.
2 PRAMEELA SAM SUJENDRA KUMAR
AGED 42 YEARS, W/O. SAM SUJENDRA KUMAR,
RESIDING AT SP COTTAGE, RAMESWARAM WARD,
AMARAVILA P.O., NEYYATTINKARA.
BY ADV SRI.G.S.REGHUNATH
RESPONDENT:
S.PRASANNA KUMAR
TC 5/543, KAWDIAR WARD, PEROORKADA P.O.,
THIRUVANANTHAPURAM-695 003.
7
R.C.Rev.Nos.124, 126, 127,
128 & 134 of 2016
BY ADVS.
SHRI.AJIT G ANJARLEKAR
SRI.RAM MOHAN.G.
SRI.G.P.SHINOD
THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL
HEARING ON 02.06.2022, ALONG WITH R.C.Rev.NO.124/2016 AND
CONNECTED CASES, THE COURT ON 29.06.2022 DELIVERED THE
FOLLOWING:
8
R.C.Rev.Nos.124, 126, 127,
128 & 134 of 2016
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 29TH DAY OF JUNE 2022 / 8TH ASHADHA, 1944
R.C.REV. NO. 134 OF 2016
AGAINST THE JUDGMENT DATED 23.01.2016 IN R.C.A.NO.55 OF
2014 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL
DISTRICT JUDGE-IV), THIRUVANANTHAPURAM AND THE ORDER
DATED 31.10.2014 IN R.C.P.NO.46 OF 2013 OF THE RENT
CONTROL COURT (ADDITIONAL MUNSIFF), THIRUVANANTHAPURAM
REVISION PETITIONERS:
1 SAM SUJENDRA KUMAR
AGED 52 YEARS, S/O.DAVIS,
RESIDING AT S.P.COTTAGE, RAMESWARAM WARD,
AMARAVILA.P.O, NEYYATTINKARA.
2 PRAMEELA SAM SUJENDRA KUMAR,
AGED 42 YEARS, W/O.SAM SUJENDRA KUMAR,
RESIDING AT S.P.COTTAGE, RAMESWARAM WARD,
AMARAVILA.P.O, NEYYATTINKARA.
BY ADV SRI.G.S.REGHUNATH
RESPONDENT:
DIVAKARAN R.
T.C.5/539, KOWDIAR WARD, PEROORKADA.P.O,
THIRUVANANTHAPURAM, RESIDING AT NIRMALA BHAVAN,
PEROORKADA.P.O, THIRUVANANTHAPURAM-695003.
9
R.C.Rev.Nos.124, 126, 127,
128 & 134 of 2016
BY ADVS.
SHRI.AJIT G ANJARLEKAR
SRI.RAM MOHAN.G.
SRI.G.P.SHINOD
THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL
HEARING ON 02.06.2022, ALONG WITH R.C.Rev.NO.124/2016 AND
CONNECTED CASES, THE COURT ON 29.06.2022 DELIVERED THE
FOLLOWING:
10
R.C.Rev.Nos.124, 126, 127,
128 & 134 of 2016
ORDER
Ajithkumar, J.
Common landlords-petitioners who filed R.C.P.Nos.46,
59, 66, 71 and 72 of 2013 before the Rent Control Court
(Additional Munsiff), Thiruvananthapuram, seeking eviction of
the respective tenants are the revision petitioners. Rent
control petitions were filed seeking eviction under Section
11(2)(b), 11(3) and 11(4)(iv) of the Kerala Buildings (Lease
and Rent Control) Act, 1965. The petitioners abandoned the
claim for eviction under Section 11(3) of the Act. The Rent
Control Court dismissed the rent control petitions. The
petitioners filed appeals under Section 18(1)(b) of the Act, but
the Rent Control Appellate Authority (Additional District
Judge-IV), Thiruvananthapuram dismissed the appeals.
Hence, these revisions are filed challenging the said
judgments and orders. Since the issues involved are similar,
these revisions are considered together.
2. The petitioners own shop room Nos.TC 5/539 to
R.C.Rev.Nos.124, 126, 127,
128 & 134 of 2016
5/549. For easy reference, shop rooms occupied by each of
the tenants and the related cases are given below:
Shop room R.C.Rev.No. R.C.A.No. R.C.P.No.
No.
TC.5/544 124 of 2016 60 of 2014 71 of 2013
TC.5/547, 126 of 2016 61 of 2014 59 of 2013
TC.5/548,
TC.5/549
TC.5/545 127 of 2016 59 of 2014 72 of 2013
TC.5/543 128 of 2016 62 of 2014 66 of 2013
TC.5/539 134 of 2016 55 of 2014 46 of 2013
3. These rooms form part of a larger building. The
rooms were let out by the predecessor-in-interest of the 2 nd
petitioner. On getting title to the said rooms and the land
appurtenant thereto, the 2nd petitioner sent notice to all the
tenants asking them to pay rent henceforth to the 2 nd
petitioner. She was attorned to as the landlady. Alleging that
the respondents-tenants and also a few other tenants failed to
make payment of the rent and also that the petitioners
wanted to reconstruct the building making use of the entire
R.C.Rev.Nos.124, 126, 127,
128 & 134 of 2016
area of 43 cents where the building in question is situated,
petitioners filed R.C.P.No.10 of 2000. That rent control petition
was dismissed for default. After that, the petitioners filed
these rent control petitions seeking eviction of the respective
respondents on the very same grounds, namely, under
Section 11(2)(b), 11(3) and 11(4)(i) of the Act.
4. The Rent Control Court tried the rent control
petitions independently. All the five rent control petitions,
regarding which these rent control revisions have arisen, were
dismissed. On finding that there is evidence to show payment
of rent for the period during which rent has allegedly been in
arrears, and a proper demand notice is wanting, eviction on
the ground of arrears of rent was declined. Regarding the
ground of reconstruction, the Rent Control Court took the
view that the plan and licence produced by the petitioners
were not proper, even without demolition of the building in
question, the proposed building can be constructed in the land
belonging to the petitioners, and the petitioners' ability to
R.C.Rev.Nos.124, 126, 127,
128 & 134 of 2016
reconstruct and their bona fides were not proved. Another
reason pointed out was that the commission report obtained
in the previous rent control petitions i.e., R.C.P.No.10 of 2000,
was not duly proved, and therefore, evidence is scarce to
prove the condition of the building.
5. Before the Appellate Authority, the petitioners
raised the very same contentions. The Appellate Authority
endorsed the views of the Rent Control Court and dismissed
all the five appeals. It has been pointed out before the
Appellate Authority that R.C.P.No.70 of 2013 filed in respect of
another room in the same building on the very same grounds
was allowed and eviction ordered. Grounds for eviction in the
said rent control petition is the same and when that petition
has been allowed, it is only appropriate to order eviction of
the tenants from the adjoining rooms. The Appellate Authority
did not accept the said contention also. Accordingly, the
Appellate Authority dismissed all the appeals.
6. These revisions were admitted and notice was
R.C.Rev.Nos.124, 126, 127,
128 & 134 of 2016
ordered to be issued to the respective respondents. All the
respondents entered appearance through their learned
counsel.
7. Heard the learned counsel appearing for the
petitioners and the learned counsel appearing for the
respondents.
8. Eviction on the ground of arrears of rent claimed by
the petitioners was declined by both the courts below holding
that no evidence regarding issuance of notice as contemplated
in Section 11(2)(b) of the Act has been produced. The stand
taken by the petitioners was that notice sent in the prelude to
filing R.C.P.No.10 of 2000 was sufficient to comply with the
proviso to Section 11(2)(b) of the Act.
9. It is mandatory for the landlord to send a
registered notice to the tenant intimating the default and only
if the tenant fails to pay the rent in arrears, together with
interest and charges, there can be an order of eviction. The
petitioners are relying on the notice sent years before. In all
R.C.Rev.Nos.124, 126, 127,
128 & 134 of 2016
the cases there is evidence to show that rent was deposited
by the respective tenants in the bank account of the
petitioners. When the respondents took the stand that there is
no rent in arrears, PW1 deposed in court that he was unable
to verify which tenant deposited what amount in his bank
account, and therefore, he could not say anything about such
claims of deposits. When the petitioners allege that the there
is arrears of rent and they are entitled to get an order of
eviction, it is their burden to show that there is arrears of rent
and they have made a demand as per the provisions of
Section 11(2)(b) of the Act. The notice said to have been sent
does not satisfy that requirement. In the said circumstances,
the findings of the courts below that the petitioners were not
entitled to get an order of eviction on the ground of arrears of
rent cannot be said to be incorrect. Therefore, the said
findings are confirmed.
10. The respondent in R.C.Rev.No.127 of 2016 raised a
contention that since R.C.P.No.10 of 2020 was dismissed,
R.C.Rev.Nos.124, 126, 127,
128 & 134 of 2016
these rent control petitions filed with reference to the same
cause of action are barred by the provisions of Section 15 of
the Act. As per the provisions of Section 15, the Rent Control
Court is bound to reject a petition for eviction summarily if
there was an earlier petition between the same parties and
the claim in such petition was substantially the same. The
further condition for getting the provisions of Section 15
attracted is that the issues in the previous proceedings have
been finally decided.
11. In Janakiamma and Others v. Bhaskaran
Nambiar [2014 (4) KLT 931], this Court held that what is
referred to in Section 15 of the Act is only on re-agitating
issues. One of the differences between Section 11 of the Code
of Civil Procedure, 1908, and Section 15 of the Act is, former
refers to "matter directly and substantially in issue" and in the
latter, the word "matter" is conspicuously absent, and it
denotes only "facts in issue". This is obvious because grounds
of eviction in the Rent Control Act are based on personal
R.C.Rev.Nos.124, 126, 127,
128 & 134 of 2016
action relatable to the landlord or tenant, which by very
nature is recurring. The expression "substantially" used in
Section 15 of the Act would necessarily indicate that issue
must have been decided on merits in the former proceedings.
In these cases, admittedly, R.C.P.No.10 of 2000 was
dismissed for default. Therefore, the bar created by the
provisions of Section 15 of the Act does not get attracted to
any of these rent control petitions.
12. The learned counsel appearing for the respondents
would submit that in the nature of the claim, the ground for
eviction should have been under Section 11(3) of the Act and
not under Section 11(4)(iv) of the Act. It is his contention that
the petitioners with an oblique motive of denying the benefit
available to the tenants under the second proviso to Section
11(3) of the Act, they claimed eviction under Section 11(4)
(iv) of the Act. In the light of the said contention it is
necessary to decide whether the plea for eviction would come
under which among the said grounds.
R.C.Rev.Nos.124, 126, 127,
128 & 134 of 2016
13. In Narayanankutty v. Abiida Abdul Kareem
[2002 (2) KLT 507] this Court held that Section 11(4)(iv)
would apply only in cases where the landlord bona fide
requires eviction of the tenanted premises so as to construct a
building in the premises where the tenanted premises situate.
In this respect, this Court observed in Gopalrksihnan K. v.
K.Maqbool Sha [ILR 2019 (4) Ker.41 : 2019 (4) KLT SN
9] thus,-
"The proposition, under Section 11(3) of the Act the
bonafide need of the landlord need not be for retaining
and using the tenanted premises after getting evicted
is well settled. Need of the landlord to provide a
passage through the land after demolishing the
tenanted structure is also covered by Section 11(3) of
the Act. The word "occupation" occurring in Section
11(3) of the Act has been interpreted in that manner
by this Court in many decisions. Therefore, 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
integra."
R.C.Rev.Nos.124, 126, 127,
128 & 134 of 2016
The contention of the tenants is that even without demolition
of the building in question, the new construction is possible.
The area covered by the existing structure is not at all
required to accommodate the new one. But for the beneficial
and profitable enjoyment of the new structure alone, the
existing structure is to be demolished, then the same can only
be a bona fide need and not a case of reconstruction. The
learned counsel appearing for the petitioners pointed out that
as can be seen from Ext.A6 plan in R.C.P.No.71 of 2013 (The
plan was marked in some other cases with a different exhibit
number), the land occupied by the existing structure is required
to provide necessary set back and car park in compliance with
the relevant rules in the Kerala Municipality Building Rules for
the new construction. His contention was resisted by the
respondents alleging that Ext.A6 plan is not a duly issued one,
and therefore, the same cannot be acted upon.
14. It can be seen from the oral testimony of PW1 that
after putting in much effort, the petitioners could get Ext.A6 plan
R.C.Rev.Nos.124, 126, 127,
128 & 134 of 2016
and also Ext.P7 permit from the Corporation of
Thiruvananthapuram. The petitioners had to even approach the
Tribunal for Local Self Government in order to get the plan
approved. It is in the said circumstances, the plan has to be
approached. It has been shown in Ext.A6 that the existing building
has to be demolished for the purpose of providing set back for the
new building. It is true that the land in question is 43 cents. It
may be correct to say that retaining the existing building, the
proposed multi-storied building could be structured, but one
cannot forget that in order to construct such a building, statutory
requirements are to be complied with. When it is shown in the
approved plan that the area occupied by the existing building is
the statutorily required set back and the area for parking, the
tenants cannot insist that such a building has to be retained there.
15. Ext. B2 series in R.C.Rev.No.126 of 2016 are the
below shown photographs of the existing building. Similar
photographs were produced in other cases and all were
proved through the photographer.
R.C.Rev.Nos.124, 126, 127,
128 & 134 of 2016
R.C.Rev.Nos.124, 126, 127,
128 & 134 of 2016
16. It abuts the public road. Admittedly it is situated at
a busy and commercially important area of the city. Its position
and condition are such that its retaining in front of the
proposed building undoubtedly would be an eyesore. It does
not suit the locality. Its retention would not be in the public
interest or common utility. Bona fides of reconstruction cannot
be measured with mathematical precision. The test shall be by
human probabilities having regard to the present day realities
and the quest for commercial and economic growth. If a
landlord proposes to construct a modern building much bigger
in size than the tenanted building in the land appurtenant
thereto, demolition of that building, for it not to be a scarecrow
is a facet of the need for reconstruction under Section 11(4)(iv)
of the Act. It is especially so if the existing building occupies
the space abutting the public road, behind which only the new
building can be constructed. In the circumstances, the
contention of the respondent that the claim should have been
under Section 11(3) of the Act is untenable.
R.C.Rev.Nos.124, 126, 127,
128 & 134 of 2016
17. Section 11(4)(iv) of the Act states,-
"(4) A landlord may apply to the Rent Control Court for
an order directing the tenant to put the landlord in
possession of the building,-
xxx xxx xxx
(iv) if the building is in such a condition that it needs
reconstruction and if the landlord requires bona fide to
reconstruct the same and if he satisfies the Court that
he has the plan and licence, if any required, and the
ability to rebuild and if the proposal is not made as a
pretext for eviction:
Provided that the landlord who evicts a tenant and does
not reconstruct completely the building within a time
which may be fixed or extended by the Rent Control
Court, shall on a petition before that Court be liable to a
fine of rupees five hundred, if it is proved that he has
wilfully neglected to reconstruct completely the building
within such time:
Provided further that the Court shall have power at any
time to issue directions regarding the reconstruction of
the building and on failure of compliance by the landlord,
to give effect to the order in any manner the Court deems
fit and in appropriate cases to put the tenant back in
possession or award to the evicted tenant damages equal
to the excess rent he has to pay for another building that
he is occupying in consequence of such eviction:
R.C.Rev.Nos.124, 126, 127,
128 & 134 of 2016
Provided further that the tenant who was evicted shall
have the first option to have the reconstructed building
allotted to him with liability to pay its fair rent; or"
18. A full Bench of this Court in Vadakkayil Beeyathu
v. Makkandiyil Gopalan and others [2005 (1) KLT 313]
explained and enumerated the requirements that are to be
proved by the landlord to claim eviction under Section 11(4)(iv)
of the Act, which are:
i) The building needs reconstruction.
ii) He has a bonafide need to do so.
iii) He has the ability to rebuild.
iv) The proposal should not be a pretext for eviction.
19. What was held in Balagangadhara Menon v.
T.V.Peter [1984 KLT 845] regarding the need of a building
to have reconstruction is that,-
"In a petition under Section 11(4)(iv) of the Act the court
can have regard to the area where the building is situated,
the nature of the developments that are taking place in the
area, etc. it is wrong to think that a building needs
reconstruction only after it has become irreparable or is
about to collapse. It is not the law that the landlord should
wait until that stage before he attempts a reconstruction. It
is not irrelevant to refer to the local conditions."
R.C.Rev.Nos.124, 126, 127,
128 & 134 of 2016
20. Regarding the need of reconstruction this Court again
in George Varghese v. Ammini Cherian [1995 (2) KLT
763] held that the condition of the building need not be
dangerous or even dilapidated, nor need be very old for
granting an order under Section 11(4)(iv) of the Act.
21. The petitioners placed strong reliance on the
commission report in R.C.P.No.10 of 2000, a copy of which is
Ext.A4 in all the cases except R.C.P No. 46 of 2013 (where it
was not produced). But it cannot be relied on since its author
was not examined. It is a commission report obtained in a
proceedings to which the petitioners as well as all the
respondents were parties. But for its reception in evidence in
a different case its contents should have been proved by
examining its author. The matter does not rather end with
that. The question is whether there is evidence to prove the
present condition and need of reconstruction even if it is
eschewed.
22. Here, the building is an old one is not a disputed fact.
Respondents invariably admitted that it is aged more than 70
years. It is also not a disputed fact that the building is a
R.C.Rev.Nos.124, 126, 127,
128 & 134 of 2016
single-storied old tiled building, abutting a busy public road.
When such a building is demanded to be demolished in order
to construct a new multi-storied shopping complex, making
use of the entire land which has an area of 43 cents, the old-
age or dilapidation of the structure may not alone be the
criteria. As pointed above the petitioners' proposal for
reconstruction of that building is quite justified in the wake of
its locational unsuitability itself. Further, its condition as is seen
from Ext. B2 photographs speak vividly that it is an eyesore in the
locality. Without any hesitation, it can therefore be said that
the existing structure needs reconstruction.
23. The view expressed by this Court in Chakolas Silk
House and others v. Abdul Sathar Ismail Sait and
others [1999 (1) KLJ 116] is apposite in this context. It
was held,-
"12. xx xx In our opinion, it is for the landlord of the
building to decide whether it need reconstruction or not.
It is his property and he is the best judge on the matter
and all that the court is entitled to do is to enquire
whether the need is bona fide or whether it is only a
pretext to evict the tenant."
R.C.Rev.Nos.124, 126, 127,
128 & 134 of 2016
It is an admitted fact that the respondents occupy the
respective tenanted premises on nominal rent. Continuation of
such a building on 43 cents of land at a busy junction in the
city of Thiruvananthapuram is not in the interest of the
landlord. The objective of the landlords behind the proposal of
reconstruction cannot be doubted in the aforesaid
circumstances. Any prudent person will have such an intention
and thereby to use his land in a profitable way. In such
circumstances, it can only be said that the petitioners'
proposal to construct a building as proposed in Ext.A6 plan is
only genuine and honest, therefore, it is bona fide.
24. In Parukutty v. Sarasamma and another [2002
(1) KLJ 649] this Court went on to say that mere fact that
landlady tried to sell away the property pending rent control
proceedings does not mean lack of bona fides. Purchasers
may be aware of the pendency of the rent control
proceedings. In a case where it is established that the building
requires reconstruction, there is nothing illegal in selling the
property, if the landlord so wishes.
25. As pointed out above, by evicting the respondents
R.C.Rev.Nos.124, 126, 127,
128 & 134 of 2016
from the respective tenanted premises and keeping the land
idle, the petitioners would not enure any advantage. The
building is of such a nature that there is no scope for any
letting it out to third persons. The learned counsel appearing
for the respondents in the above context, submitted that a
part of the land is now occupied by a political party, and
therefore, the intention of the petitioners is not to rebuild, but
something else. Such a contention is raised without there
having any factual foundation. We have discussed above in
detail the circumstances in which the petitioners mooted the
new construction and why is it a bonafide proposal. They have
obtained a plan for the new construction approved and the
permit. We do not expect the petitioners are not aware of the
penal consequences for the failure to carryout construction
contained in the second proviso to Section 11(4)(iv) of the
Act. Taking all such circumstances into account, it can only be
said that the petitioners have projected the ground of
reconstruction not as a pretext for evicting the respondents.
R.C.Rev.Nos.124, 126, 127,
128 & 134 of 2016
26. Coming to the question of the ability of the
petitioners to rebuild, they do not have a plea that they are
readily having money with them to undertake such a
construction. But it is pleaded, and stated to by PW1, the 1 st
petitioner, that they can raise sufficient funds for the
construction of the proposed building. Their ability to raise
enough funds for such a construction is not seriously
challenged. The version of PW1 in this respect is not
impeached by a successful cross-examination. In Saramma
Varghese v. George [1971 KLT 282] this Court held that
even if the petitioner is not possessed at present of the entire
amount required for the reconstruction, it is enough if he satisfies
the court that he has got the power, capacity and the talent to raise
the funds and carry on the construction. Viewed so, the evidence
mentioned above leads us to have an irresistible conclusion
that the petitioners have the ability to undertake the proposed
construction.
27. The learned counsel appearing for the respondents
R.C.Rev.Nos.124, 126, 127,
128 & 134 of 2016
would contend that the building plan and permit were
obtained not in a legal way and those are not acceptable
ones. From the face of these documents itself it can be said
that the Corporation authorities had issued the same. By
affixing the seal of approval in the plan and permit it has
become public documents. merely on raising a contention that
those are documents obtained illegally it would not lose its
sanctity. The respondents did not take any effort to
substantiate that contention. On considering the evidence
available on record we can only say that the plan and permit
are duly obtained by the petitioners. Of course, period of the
permit is already over.
28. In the above regard this Court in Jose v. Thomas
[1992 (1) KLT 158] held,-
"In almost all cases wherein the tenants contest the
claim for eviction, the period originally granted by the
local authority for construction of building would expire
before final disposal of the petition. It is a well known
canon of interpretation that the court should adopt an
interpretation which would give effect to the purpose of
R.C.Rev.Nos.124, 126, 127,
128 & 134 of 2016
the act and avoid an interpretation which would defeat
its object. When the Rent Control Court or Revisional
Authority is satisfied that the landlord has a plan and
licence to reconstruct the building, his petition is not to
be dismissed on a finding that the period of licence
expired during the pendency of proceedings under the
Act. The Act does not contemplate rejection of the
petition on the ground that the period of licence
granted by the Municipality expired during the
pendency of the proceedings. In order to safeguard and
protect the interest of the tenant in such cases, the
court may incorporate a direction in the order of
eviction that actual delivery of possession will be given
only when landlord satisfies the execution court that
the licence has been renewed or a new licence has
been granted by the local authority concerned."
We respectfully endorse the said view. We hasten to add that
it is not an invariable rule to insist on production of a valid
permit and approved plan before giving possession. Only if
the court is of the view that such production is needed for
some reason, there is a need to stipulate that condition.
29. The learned Counsel for the respondents would
contend that in the light of the concurrent findings of the
R.C.Rev.Nos.124, 126, 127,
128 & 134 of 2016
courts below declining the claim of the petitioners for eviction,
this Court in its jurisdiction under Section 20 of the Act is not
justified in re-appreciating the evidence and to come to an
independent finding. The learned Counsel appearing for the
petitioner, on the other hand, submitted that there is no bar in
re-appreciationg the evidence if there is perversity in the
findings of the courts below. In order to fortify that contention
he placed reliance on the decision in Madhavan v.
Leelamma [1991 (2) KLT 32] where this Court held that
Section 20 of the Act of course allows the High Court to examine
the evidence to satisfy whether the orders passed by the lower
authorities did not suffer from the vice of illegality, irregularity and
impropriety.
30. 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 Three-Judge Bench of the Apex
Court. While considering whether the High Court could have
R.C.Rev.Nos.124, 126, 127,
128 & 134 of 2016
re-appreciated the 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.
31. 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
R.C.Rev.Nos.124, 126, 127,
128 & 134 of 2016
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 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.
32. 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
R.C.Rev.Nos.124, 126, 127,
128 & 134 of 2016
not re-appreciate the evidence and interfere with the
concurrent findings by the courts below while exercising
revisional jurisdiction.
33. In view of the principles of law laid down in the
aforesaid decisions, it is not prohibited this Court from looking
into the evidence in order to ascertain whether the findings
are legal, regular and proper. This Court is only expected to
look whether the findings are suffering from any perversity.
Applying that test we have examined the evidence on record.
We find that the courts below totally fell in error in the matter
of appreciation of evidence. That resulted in rendering
perverse and incorrect findings. The findings are not the
reflections of the evidence on record. We are therefore of the
view that the same amounted to wrong exercise of
jurisdiction, requiring this Court to interfere under Section 20
of the Act. Hence, we, on setting aside the findings of the
courts below, hold that the petitioners are entitled to get an
order of conviction under Section 11(4)(iv) of the Act with
R.C.Rev.Nos.124, 126, 127,
128 & 134 of 2016
respect to the petition schedule shop rooms involved in all
these revisions. Suffice it to say that the respondents do have
the right to get possession of space in the newly constructed
building in terms of the third proviso to Section 11(4)(iv) of
the Act.
34. The revision petitions are accordingly allowed.
R.C.P.Nos.46, 59, 66, 71 and 72 of 2013 before the Rent
Control Court (Additional Munsiff), Thiruvananthapuram stand
allowed. The respondents are directed to give the petitioners
vacant possession of the petition schedule shop rooms within
a period of three months from today. The petitioners shall
complete the construction within a period of two years from
the date of getting vacant possession of the petition schedule
premises.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
