Kerala High Court
Ummer Farook A.V vs Nangiyarath Moidu on 2 August, 2024
Author: Anil K. Narendran
Bench: Anil K. Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN
&
THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
FRIDAY, THE 2ND DAY OF AUGUST 2024 / 11TH SRAVANA, 1946
OP (RC) NO. 96 OF 2024
AGAINST THE ORDER DATED 05.02.2024 IN RCP NO.204 OF 2018 OF
RENT CONTROL COURT (ADDITIONAL MUNSIFF), KOZHIKODE-I
PETITIONER:
UMMER FAROOK A.V
AGED 52 YEARS, S/O. ASSANKOYA N.M, CHEVAYUR
AMSOM, DESOM KOZHIKODE, PIN - 673017
BY ADVS.SHARAN SHAHIER
RAKHY BABY
TREESA SHAJI
NISHAN AHAMMED MULLAVEETTIL
RESPONDENTS:
1 NANGIYARATH MOIDU
AGED 64 YEARS, S/O. AMMED, AAYANCHERY AMSOM,
DESOM, P.O. AAYANCHERY, VADAKARA TALUK., PIN -
673101
2 NANGIYARATH KUNHABDULLA
AGED 62 YEARS, S/O. AMMED, AAYANCHERY AMSOM,
DESOM, P.O. AAYANCHERY, VADAKARA TALUK., PIN -
673101
3 NAMBIDIKAYIL MUHAMMED
AGED 62 YEARS, S/O. KUNHABDULLA, AAYANCHERY
AMSOM, DESOM, P.O. AAYANCHERY, VADAKARA TALUK.,
PIN - 673101
THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON
02.08.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2
O.P.(RC) No.96 of 2024
JUDGMENT
Anil K. Narendran, J.
The petitioner is the respondent-tenant in RCP No.204 of
2018 on the file of the Rent Control Court (Additional Munsiff-I),
Kozhikode, a petition filed by the respondents herein-landlords,
seeking eviction of the tenant from the petition schedule shop
rooms on the ground of arrears of rent and bona fide need. The
need projected in the Rent Control Petition for seeking an order of
eviction under Section 11(3) of the Act is that of the landlords to
start a hotel utilising the two shop rooms, one on the ground floor
and the other on the first floor. The tenant entered appearance
and filed counter affidavit, opposing the order of eviction sought
for. The tenant raised a contention that the shop rooms are not
suitable for the need projected in the Rent Control Petition. Ext.P1
is a copy of the Rent Control Petition and Ext.P2 is a copy of the
counter statement filed by the tenant.
2. Before the Rent Control Court, the Advocate
Commissioner, appointed in I.A.No.3091 of 2019, filed Ext.P3
report dated 21.12.2019, enclosing therewith a detailed sketch.
The tenant filed I.A.No.1 of 2020 to remit the report of the
Advocate Commissioner, in which the landlords filed their
objections. A copy of that interlocutory application is marked as
Ext.P4. The landlords filed Ext.P5 counter statement dated
03.06.2020 in that interlocutory application. Thereafter the Rent
Control Court passed an ex parte order of eviction vide Ext.P6
order dated 15.11.2022, which was later set aside by the order
dated 03.07.2023. Since the Advocate Commissioner, who
submitted Ext.P3 report dated 21.12.2019 is not available for
inspection, another Advocate Commissioner was appointed to
conduct inspection of the petition schedule shop rooms, who
submitted Ext.P7 report dated 10.08.2023, along with detailed
sketch.
3. The tenant filed I.A.No.5 of 2023, seeking an order to
remit Ext.P7 report of the Advocate Commissioner. In that
interlocutory application, i.e., Ext.P8 application, the landlords
filed Ext.P9 counter statement dated 17.10.2023. After
considering the rival contentions, the Rent Control Court dismissed
I.A.No.5 of 2023 in RCP No.204 of 2018 by Ext.P10 order dated
05.02.2024, which is under challenge in this original petition filed
by the petitioner-tenant invoking the supervisory jurisdiction of
this Court under Article 227 of the Constitution of India.
4. Heard the learned counsel for the petitioner-tenant.
5. The issue that requires consideration in this original
petition is as to whether any interference is warranted on Ext.P10
order of the Rent Control Court in I.A.No.5 of 2023 in R.C.P. No.
204 of 2018.
6. The learned counsel for the petitioner-tenant would
contend that the Rent Control Court committed a grave error in
dismissing I.A.No.5 of 2023 filed by the tenant to remit Ext.P7
report dated 10.08.2023 of the Advocate Commissioner, since it is
essential for the adjudication of a technical contention raised by
the tenant with reference to the need projected in the Rent Control
Petition for seeking an order of eviction under Section 11(3) of the
Act. Such an exercise is necessary in order to prove the contention
of the tenant that the need projected in the Rent Control Petition
is not bona fide. For such an exercise, the appointment of a
qualified structural engineer for inspecting the petition schedule
shop rooms is necessary.
7. Article 227 of the Constitution of India deals with power
of superintendence over all courts by the High Court. Under clause
(1) of Article 227 of the Constitution, every High Court shall have
superintendence over all courts and tribunals throughout the
territories in relation to which it exercises jurisdiction.
8. In Shalini Shyam Shetty v. Rajendra Shankar Patil
[(2010) 8 SCC 329] the Apex Court, while analysing the scope
and ambit of the power of superintendence under Article 227 of
the Constitution, held that the object of superintendence, both
administrative and judicial, is to maintain efficiency, smooth and
orderly functioning of the entire machinery of justice in such a way
as it does not bring it into any disrepute. The power of interference
under Article 227 is to be kept to the minimum to ensure that the
wheel of justice does not come to a halt and the fountain of justice
remains pure and unpolluted in order to maintain public
confidence in the functioning of the tribunals and courts
subordinate to the High Court.
9. In the light of the law laid down in the decisions
referred to supra, an order passed by the Rent Control Court in an
interlocutory application can be interfered with, only in cases in
which the reasoning of the Rent Control Court is perverse, patently
illegal or any of the limited grounds for challenge is available in an
original petition filed under Article 227 of the Constitution of India.
The reasoning of the Rent Control Court in the impugned order
cannot be said to be either perverse or patently illegal, warranting
an interference in this original petition.
10. The reasoning of the Rent Control Court, as contained
in paragraphs 4 to 6 of Ext.P10 order dated 05.02.2024 in I.A.No.5
of 2023 in RCP No.204 of 2018 reads thus;
'4. The point: At the outset, I may state that the RCP was
filed under Section 11(2)(b) and 11(3) of KBLR Act. The case
put forth by the petitioners is that they intend to start a hotel
business on the scheduled premise. The Advocate
Commissioner after giving notice to both sides inspected the
property on 03.08.2023 and filed a report. Para 9 and 10 of
the said report are reproduced hereunder:
"ഹർജി പട്ടികയിലെ രണ്ടാം നമ്പർ കടമുറിയുലട
പടിഞ്ഞടറ് ഭടഗത്ത് ഒന്ടാം നമ്പർ കടമുറിയുമടയി
നനരിട്ട് ബന്ധിപ്പിക്കടൻ നേണ്ി കൃത്യമടയ
ക്കമീകരണങ്ങന ടടുകൂടി ഒരു ലെയർലകയ്സ്
ഘടിപ്പിക്കുന്ത്ിന് ആേശ്യമടയ സൗകരയാം
ഉള്ളത്ടയിട്ടടണ് എന്ലറ പരിനശ്ടധന നേ യിൽ
എനിക്ക് കടണടൻ സടധിച്ചത്. ഈ രീത്ിയിൽ
ലകട്ടിടത്തിന് ഉള്ളിൽ കൂലട ത്ലന് ഒരു ലെയർലകയ്സ്
സൗകരയാം ഉണ്ടക്കിലയടുക്കടേുന്ത്ടണ്.
10. ഒന്ുാം രണ്ുാം പീടിക മുറിക ിൽ നേണ്ത്ടയ
ക്കമീകരണങ്ങൾ നടത്തിയടൽ അേിലട ഒരു നഹടട്ടൽ
ബിസിന് നടത്തുന്ത്ിന് ആേശ്യമടയ സൗകരയാം
ഉണ്ടകുാം എന്ടണ് പരിനശ്ടധനയിൽ എനിക്ക്
നത്ടന്ിയത്."
5. The case of the petitioner/tenant is that it is not possible
to construct a staircase through the interior of the scheduled
premise for the reason that creating a hole on the top of the
room for the purpose of the staircase will affect the strength
of the entire building. It is also their case that if a staircase
is constructed inside the premise shown in sketch I,
submitted along with the report, it would cover a major
portion of the said room. They have also raised a contention
that the scheduled premises are not suitable to start a hotel
business. Hence the petitioner would contend that the
Commissioner has to inspect the property with the
assistance of a qualified Engineer.
6. It is pertinent to note that the tenant cannot dictate as to
how or in what manner the landlord should make use of the
premise for his bona fide need. It is not the requirement of
law that the landlord has to obtain a building permit and
plan before getting an order of eviction under Section 11(3).
What Section 11(3) mandates is that the landlord should
have a need which is bona fide. How the landlord should use
the premise to suit his bona fide need is entirely the
discretion of the landlord and the tenant has no say in it.
Ever if it is found that the proposed staircase in the
scheduled premises would affect the strength of the
building, that cannot be an indicator to prove that the
respondents had no bona fides. It is for the appropriate
authorities to decide whether a permit has to be granted for
construction of the said staircase. Even if the permit is not
granted, the respondents herein could go for other options
for the construction of a staircase. Similar is the case with
waste water management plants and construction of a
kitchen. It is for the landlord to decide. Hence I find that
appointing a structural Engineer is not required in the facts
and circumstances of this case. Even otherwise, the
respondents are at liberty to adduce evidence to show that
the landlords will not get a building permit for hotel business
in the scheduled premise. As far as the findings of the
Advocate Commissioner regarding existence of vacant
rooms in the locality, there is nothing in the report to show
that the Advocate Commissioner had not inspected the
inside of the vacant rooms mentioned in the report. It is
pertinent to note that no steps were taken by the petitioner
to examine the Advocate Commissioner to prove their
contentions in the petition.
11. In Ext.P10 order, the Rent Control Court noticed that
the Rent Control Petition is of the year 2018. When it was listed
for trial on 02.08.2023, the tenant filed application for remitting
Ext.P3 commission report dated 21.12.2019, which was allowed
based on the orders passed in I.A.No.1 of 2020. Thereafter, Ext.P7
report was filed on 10.08.2023 and the Rent Control Petition was
again listed for trial on 02.11.2023. At that time, the tenant filed
Ext.P9 interlocutory application dated 17.10.2023, for remitting
Ext.P7 report of the Advocate Commissioner. After considering the
said fact and also the facts and circumstances of the case, as
discernible from paragraphs 4 to 6 of Ext.P10 order, the Rent
Control Court arrived at a conclusion in paragraph 8 of that order
that the tenant has not made out a case for remitting Ext.P7 report
dated 10.08.2023 of the Advocate Commissioner, for a fresh
report with the assistance of a structural engineer. The Rent
Control Court found that such a report is not essential for an
effective adjudication of the dispute involved in the Rent Control
Petition.
12. We also notice that though Ext.P10 order is one dated
05.02.2024, the petitioner-tenant has chosen to challenge the
same before this Court only on 31.07.2024, by filing this original
petition.
13. In the above circumstances, we find no reason to
interfere with Ext.P10 order dated 05.02.2024 in I.A.No.5 of 2023
in RCP No.204 of 2018. The reasoning of the Rent Control Court
cannot be said to be either perverse or patently illegal warranting
interference of this Court in exercise of the supervisory jurisdiction
under Article 227 of the Constitution of India.
In the result, the original petition fails and the same is
accordingly dismissed.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
HARISANKAR V. MENON, JUDGE
anm
APPENDIX OF OP (RC) 96/2024
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE RCP 204/2018 DATED
04.12.2018 UNDER SECTION 11(2) (B) AND 11
(3) OF THE KERALA BUILDING (LEASE AND
RENT) ACT BEFORE THE RENT CONTROL COURT
/ADDITIONAL MUNSIFF-I, KOZHIKODE ALONG
WITH ENGLISH TRANSLATION
Exhibit P2 A TRUE COPY OF THE COUNTER STATEMENT
FILED BY THE PETITIONER/ TENANT DATED
22.05.2019 BEFORE THE RENT CONTROL COURT
/ADDITIONAL MUNSIFF-I, KOZHIKODE ALONG
WITH ENGLISH TRANSLATION
Exhibit P3 A TRUE COPY OF THE REPORT DATED
21.12.2019 IN IA NO. 3091/2019 IN RCP
204/2018 BY THE ADVOCATE COMMISSIONER
BEFORE THE RENT CONTROL COURT /ADDITIONAL
MUNSIFF-I, KOZHIKODE ALONG WITH ENGLISH
TRANSLATION
Exhibit P4 A TRUE COPY OF THE IA 1/2020 IN RCP
204/2018 FILED BY THE PETITIONER DATED
10.03.2020 BEFORE THE RENT CONTROL COURT
/ADDITIONAL MUNSIFF-I, KOZHIKODE ALONG
WITH ENGLISH TRANSLATION
Exhibit P5 A TRUE COPY OF THE COUNTER IN IA 1/2020
IN RCP 204/2018 FILED BY THE RESPONDENTS
BEFORE THE RENT CONTROL COURT /ADDITIONAL
MUNSIFF-I, KOZHIKODE DATED 03.06.2020
ALONG WITH ENGLISH TRANSLATION
Exhibit P6 A TRUE COPY OF THE ORDER DATED 15.11.2022
BEFORE THE RENT CONTROL COURT/ADDITIONAL
MUNSIFF - I, KOZHIKODE IN RCP 204/2018
Exhibit P7 A TRUE COPY OF THE ADVOCATES COMMISSION
ALONG WITH ENGLISH TRANSLATION
Exhibit P8 A TRUE COPY OF THE IA 5/2023 IN RCP
204/2018 FILED BY THE PETITIONER BEFORE
THE RENT CONTROL COURT /ADDITIONAL
MUNSIFF-I, KOZHIKODE DATED 07.09.2023
ALONG WITH ENGLISH TRANSLATION
Exhibit P9 A TRUE COPY OF THE COUNTER IN IA 5/2023
IN RCP 204/2018 FILED BY THE RESPONDENTS
BEFORE THE RENT CONTROL COURT /ADDITIONAL
MUNSIFF-I, KOZHIKODE DATED 17.10.2023
Exhibit P10 A TRUE COPY OF THE ORDER DATED 05.02.2024
IN IA 5/2023 IN RCP 204/2018 PASSED BY
THE RENT CONTROL COURT /ADDITIONAL
MUNSIFF-I, KOZHIKODE
