Shamsudeen v. District Court — 1997 DIGILAW 347 (KER)

Judgment :- S. Sankarasubban, J. This Original Petition is filed under Art.227 of the Constitution of India, challenging the order passed by the District Judge, Kollam in Rent Control Revision No. 6 of 1989, copy of which is produced as Ext. P3 in the Original Petition. The proceedings arise from R.C.P. No. 77 of 1983 filed by the petitioner before the Rent Control Court, Quilon. The petition was filed under S.11(3) and 11(8) of the Kerala Buildings (Lease & Rent Control) Act, 1965, hereinafter referred to as the Act. The case of the petitioner was as follows: He is the owner of the petition schedule shop rooms bearing the present Door Nos. M.C. Nos. 12 to 14. The prior M.C. Nos. of the Schedule building were 12 to 15. The petitioner was conducting a hotel in the petition schedule building. The business flourished because of the cinema theatre adjacent to it. When the theatre was closed, the hotel business of the petitioner also came down. Hence, the petitioner stopped his business. Except one room in M.C. 12, the rest of the rooms in M.C. Nos. 12,13 and 14 were given on rent to the 4th respondent counter petitioner. The counter petitioner was using the premises as a godown and he was running a provision shop in another building. The lease agreement was made for a period of six months. According to the petitioner, the short duration in the lease agreement was made because, he wanted to re-start his hotel business. He informed the 4th respondent to give back possession of the premise since he wanted to start the business again. According to him, he has no other business and he could maintain his family only by conducting the hotel business. He had stated in his petition that part of room in No. 12 which is in his possession will not be enough for conducting the hotel; so also door numbers 15 and 16 are not useful for the purpose of conducting the hotel. 2. The 4th respondent-counter petitioner filed his objections. He submitted that there was no need for the petitioner for conducting the hotel business and that there was no alternate building available for Mm to be used as godown and he is depending for his livelihood on the godown. 3. 2. The 4th respondent-counter petitioner filed his objections. He submitted that there was no need for the petitioner for conducting the hotel business and that there was no alternate building available for Mm to be used as godown and he is depending for his livelihood on the godown. 3. The Rent Control Court, after an elaborate discussion, held that the petitioner bonafide needs the building for his own occupation. So far as the benefit of the proviso was concerned, the Rent Control Court took the view that the respondent was not depending on the building for his livelihood. According to the Rent Control Court, the respondent was conducting a provision business and he has got other godowns. Hence, it ordered eviction under S.11(3) of the Act. The respondent took the matter in appeal. The appellate authority dismissed the appeal. Against the judgment, a revision was filed before the revisional authority. The revisional authority allowed the revision and dismissed the petition for eviction and hence this original petition. 4. Learned counsel for the petitioner, Sri. Krishnamani, contended that the revisional authority exceeded its jurisdiction under S.20 of the Act. The revisional authority re-appreciated the evidence and have come to a different conclusion. According to him, these findings were not based on any facts. Further, he submitted that the respondent had never contended before the revisional court that the petition for eviction should be considered as one filed under S.11(8) of the Act. Learned counsel for the 4th respondent, Sri. S. V. Balakrishna Iyer, contended that both the rent control court and the appellate authority had not properly discussed the question in issue. The revisional authority had every right to find out. whether the order of eviction was proper or not. According to him, it was only after considering the relevant questions in issue, the revision was allowed and the rent control petition was dismissed. 5. I heard the learned counsel for the petitioner and the learned counsel for the 4th respondent and perused the records. I am satisfied that in this case, the revisional authority exceeded its jurisdiction under S.20 of the Act. 5. I heard the learned counsel for the petitioner and the learned counsel for the 4th respondent and perused the records. I am satisfied that in this case, the revisional authority exceeded its jurisdiction under S.20 of the Act. The revisional authority has set aside the concurrent findings of the rent control court and the appellate authority on the following grounds : (1) The petition for eviction was under S.11(8) of the Act and not under S.11(3), (2) The hardship that will be suffered by the tenant will outweigh the advantage to be gained by the landlord, if eviction is allowed; and (3) The landlord has no true bonafides. 6. At the outset, I wish to state that neither in the Rent Control Court nor in the Rent Control Appeal, has the tenant raised such a contention that the petition for eviction should have been considered as one under S.11(8) of the Act. Merely because in the Rent Control Petition, S.11(8) was also mentioned, it is not necessary that the landlord should prove that he is entitled to get the order of eviction only under S.11(8) of the Act. Besides according to me, the revisional authority was not correct in holding that the petition was under S.11(8) of the Act. The revisional authority has given undue importance to the fact that trie petitioner was in possession of one of the rooms in Door No. 12. Hence, according to the revisional authority, since the landlord was in possession of one of the rooms (part of the building) his claim for the remaining part can only be under S.11(8) of the Act. The approach made by the revisional authority is not correct. S.11(8) of the Act reads as follows: 11. Eviction of tenants:- (8) A landlord who is occupying only a part of a building, may apply to the Rent Control Court for an order directing any tenant occupying the whole or any portion of there maiming paid of the building to put the land lord in possession thereof, if he requires additional accommodation for his personal use." The important question to be borne in mind in considering whether a claim for eviction is under S.11(8) or not is to find out whether the landlord is occupying any part of the bidding. No doubt, it is true that the landlord is in possession of one of the rooms, which is part of the building. If he is in occupation of a portion of the building, probably it can be argued that the petition for eviction should be under S.11(8). Another requirement stated is that under S.11(8) the landlord requires the building for additional accommodation for his personal use. So, only if the landlord is occupying a portion of the building and the rest of the building is required for additional accommodation, the invocation of S.11(8) arises. 7. In this context, the word 'occupation' has to be understood differently from the word 'possession'. This question came for consideration before this Court in Muhammedv. Abdul Rahiman (1983 KLT 874). Balakrishna Menon, J. as he then was, held as follows: "Occupation and possession are not synonymous terms. One may possess land or building without occupying the same. Unless the landlord is occupying part of the building, he will not be entitled to invoke sub-s.(8) of S.11 to evict the tenant occupying the remaining part of the building." His Lordship referred to the decision in AIR 1951 Mysore 66 (Ratilal Bros v. Government of Mysore & Anr.) and held that unless the landlord is physically present for a substantial period of time, it cannot be said that he was in occupation. The difference between occupation and possession has been succinctly stated by Lush, J., in R. v. St. Pancras (2 QBD 588) as follows: "Occupation includes possession as its primary element, but it also includes something more. Legal possession does not, of itself constitute an occupation. The owner of vacant house 'is in possession, and may maintain trespass against any one who invades it; but as long as he leaves it vacant s he is not in occupation; nor is he an occupier." A similar question arose in Krishnalal Ishwarlal Desai v. Bai Vljker & Ors. (AIR 1967 SC 375). The Supreme Court also held that possession and occupation are different. 8. In the present case, it has come out from the evidence that the landlord is not occupying the building. What he has done is that after discontinuing his business, he had dumped some of his belongings in one room and that is why that room was not let in to the tenant. 8. In the present case, it has come out from the evidence that the landlord is not occupying the building. What he has done is that after discontinuing his business, he had dumped some of his belongings in one room and that is why that room was not let in to the tenant. In such circumstances, the application for eviction cannot be said to be one under S.11(8) of the Act. Further it is not for the purpose of additional accommodation that he requires the bidding. He wants to restart the hotel business. S.11(8) will come into play if he was conducting his business in the room in his possession and he wanted to expand his business by having additional space. That is not here. Hence, I do not agree with the finding given by the revisional authority that the application for eviction is one under S.11(8) of the Act. According to me, the application comes under S.11(3) of the Act. 9. The next question is regarding the bonafides. That the petitioner was conducting a hotel in the schedule building is not denied. The revisional authority has stated that the need shown by the landlord is a mere wish. This is without any basis. When both the authorities on the basis of the evidence adduced have upheld the landlord's contention that he bona fide requires the building, the revisional authority exceeded the jurisdiction in upsetting the same without any cogent reasons. According to the revisional authority, the petitioner could have made use of building Nos. 15 and 16. The explanation given in the petition is that building Nos. 12 to 14 have all the facilities for conducting a hotel including a chimney and a smoke hole. These are the facts which were taken into account by the rent control court and the appellate authority. When a person requires a building for a particular purpose he is the best person to judge whether it is suitable for his purpose. A third person cannot say that the owner should be satisfied with the occupation of other spaces. It has already come out in evidence that the 4th respondent is conducting a provisional business. He was not able to prove that he was depending on the income derived from the business in the petition schedule building for his livelihood. Further, he has other godowns also. It has already come out in evidence that the 4th respondent is conducting a provisional business. He was not able to prove that he was depending on the income derived from the business in the petition schedule building for his livelihood. Further, he has other godowns also. Hence, I agree with the Rent Control Court and the appellate authority that the 4th respondent is not entitled to the benefit of the proviso. In the above view of the matter, I set aside Ext. P3 and confirm the orders of eviction passed by the Rent Control Court and the appellate authority. Original Petition is allowed. No order as to costs.