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2009 DIGILAW 262 (KER)

P. T. Velayudhan v. U. S. Santhosh Kumar

2009-03-16

C.KURIAKOSE, K.SURENDRA MOHAN

body2009
Judgment: Pius. C. Kuriakose, J. A tenant against whom order of eviction under Sub Section 8 of Section 11 of the Kerala Buildings ( Lease and Rent Control) Act 1965 has been concurrently passed by the rent control court and the appellate authority is the revision petitioner. The petition schedule building is portion of a larger building and admittedly the first respondent/landlord is in occupation of certain portions of the said building and is conducting hotel business in those portions by the name "Lunch House". 2. The need projected by the landlord was that there is no sufficient convenience in the rooms under his occupation, for him to conduct the lunch house business and to accommodate the customers who are coming to take lunch. According to the landlord, there is necessity to expand the hotel business and for that, sufficient convenience is to be arranged for storage of food materials, fire wood etc. etc. The landlord has simultaneously instituted petitions for eviction on the same ground against the tenants in occupation of the other portions of the larger building. 3. The rent control court on an evaluation of the evidence which came on record became inclined to pass order of eviction under Sub Section 8 of Section 11 only against the revision petitioner who was the 7th respondent in the rent control petition and also against the 8th respondent. The eviction was declined against the other respondents. Eviction was declined against respondents 1 to 6 mainly on the reason that they are entitled to the protection of the first proviso to Sub Section 10 of Section 11 and to a certain extent due to the reason that the landlord had not succeeded in establishing that he requires the portions occupied by those tenants also, for accomplishing the avowed need for additional accommodation. 4. In this revision petition we are concerned with the legality, regularity and propriety of the order of eviction passed against the revision petitioner who was the 7th respondent. We have heard the submissions of Sri. C.P. Mohammed Nias, learned counsel for the revision petitioner and those of Sri.S.Vinod Bhat, who had lodged a caveat on behalf of the first respondent/landlord. Sri.Nias would address us extensively. He submitted that the revision petitioner is conducting a ration shop on the strength of the licence issued to him by the Civil Supplies Department. C.P. Mohammed Nias, learned counsel for the revision petitioner and those of Sri.S.Vinod Bhat, who had lodged a caveat on behalf of the first respondent/landlord. Sri.Nias would address us extensively. He submitted that the revision petitioner is conducting a ration shop on the strength of the licence issued to him by the Civil Supplies Department. This ration depot caters to the needs of as many as 530 ration card holders. Drawing our attention to clause (i) of Sub Section 11 of Section 11 of the Rent Control Act and Section 3 of the Essential Commodities Act, Sri.Nias would forcefully submit that the petitioner is a tenant who falls within clause (i) of Sub Section 11 of Section 11 and hence the order of eviction passed against him is not sustainable. He would further submit that the need projected in the rent control petition was that the landlord requires the building portions occupied by all the tenants who were respondents in the rent control petition for expansion of his lunch house business. The authorities having found that the need to the extent, the same pertains to the other tenants is not a genuine one, is not justified in finding that the need is genuine when it comes to the plea for eviction against the revision petitioner. Sri. Nias would assail the findings of the authorities on the other grounds raised in the revision petition also. 5. Sri.S.Vinod Bhat, learned counsel for the respondent would submit that the only notification which has been promulgated by the Government in the context of clause (i) of sub-section (11) of section 11 is SRO. 551/1977. That notification is to the effect only that the employments in which the Military Estates Officers and the Personnel paid from the Defence Services Estimates of the Government of India employed within the limits of the Corporation of Cochin shall be essential services for the purpose of Section 11(11). Regarding the other submissions of Sri. Mohammed Nias, Sri. Bhat would submit that this court under section 20 is not expected to re-appraise the evidence and substitute its findings for the findings entered by the authorities below on the basis of evidence, especially when they are concurrent. 6. We have anxiously considered the rival submissions. Regarding the other submissions of Sri. Mohammed Nias, Sri. Bhat would submit that this court under section 20 is not expected to re-appraise the evidence and substitute its findings for the findings entered by the authorities below on the basis of evidence, especially when they are concurrent. 6. We have anxiously considered the rival submissions. Sub Section 11 of Section 11 reads as follows: " Notwithstanding anything contained in sub-sections(1) to (10) no order for eviction or for putting the landlord in possession shall be passed,- (i) against any tenant who is engaged in any employment or class of employment notified by the government as an essential service for the purpose of this sub-section, unless the landlord is himself engaged in any employment or class of employment which has been so notified, and the landlord requires the building for his own occupation; or (ii) in respect of any building which has been let for use as an educational institution, and is actually being used as such, provided that the institution has been recognised by the Government or any authority empowered by them in this behalf, so long as such recognition continues." 7. A reading of clause (i) of Sub Section 11 of Section 11 as quoted above will show that it is 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 ( unless the landlord himself is engaged in any employment or class of employment which has been so notified) who are given immunity from eviction. The only notification which has been promulgated by the government in exercise of powers under Sub Section 11 of Section 11 is notification No. 551/1977 which reads as follows : " In exercise of the powers conferred by clause (i) of sub-section (11) of Section 11 of the Kerala Buildings (Lease and Rent Control) Act, 1965 ( Act 2 of 1965), the Government of Kerala hereby notify that the employments in which the Military Estates Officers and the personnel paid from the Defence Services Estimates of the Government of India are employed within the limits of the Corporation of Cochin shall be essential services for the purpose of the said sub-section." 8. The submission of Sri. Mohammed Nias based on section 3 of the Essential Commodities Act does not have even superficial attractiveness. The submission of Sri. Mohammed Nias based on section 3 of the Essential Commodities Act does not have even superficial attractiveness. Section 3 only enables the Government to control and regulate the production, supply, distribution, etc. of essential commodities and the Rationing Order 1966 has been promulgated by the Government of Kerala in exercise of power under sub-sections (1) and (2) of section 3 of the Essential Commodities Act for maintaining supply of and for securing the equitable distribution and availability at fair prices of essential commodities like rice, wheat, kerosene etc. which are referred to in the order as rationed articles. The revision petitioner is only a retail dealer who has been appointed as an authorized retail distributor under the provisions of subclause (i) of clause 45 by the District Supply Officer concerned for the purpose of distributing the rationed articles. Authorised retail distributors like the revision petitioner are only the dealers under the Civil Supplies Department and they are not 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 Act 2 of 1965 or for that matter, any other purpose. 9. Having gone through the judgment of the rent control court and the appellate authority, we do not find any warrant for invocation of the jurisdiction of this court under Section 20 which is an attenuated one. This court under this jurisdiction is not expected to re-appraise the evidence and substitute its findings for the findings of the authorities below. This courts enquiry will be confined to the question whether the orders passed by the statutory authorities are vitiated by any illegality, irregularity or impropriety. Admittedly, the building in question is portion of a larger building and the landlord is in occupation of certain portions of the same larger building doing eatery business by name lunch house. Landlords need is to have additional accommodation so that he can expand his on going lunch house business. It has come out in evidence that the landlord is presently occupying a building taken on lease by him for the purposes of his lunch house business. The finding of the authorities below is that at least to the extent of shifting the activities presently conducted by him in the building in which he is a tenant, the landlords need for additional accommodation is a genuine one. The finding of the authorities below is that at least to the extent of shifting the activities presently conducted by him in the building in which he is a tenant, the landlords need for additional accommodation is a genuine one. It is trite that the standards necessary for establishing bonafides in a petition under Sub Section 8 of Section 11 are not so stringent as in petitions under Sub Section 3 of Section 11. We do not find any infirmity about the finding of the authorities below that the need projected by the landlord for additional accommodation is bonafide. The same is the position regarding the findings of the authorities below regarding the first proviso to Section 11(10). Of course, we notice merit in the submission of the Sri.Nias that the rent control appellate authority has mis-read the first proviso to Section 11(10) and has proceeded to enquire into the comparability of hardship which will be sustained by the landlord and the hardship which will be sustained by the tenant. What the authorities under the Rent Control Act are expected to do is to weigh the advantages which will enure to the landlord against the hardship which will be sustained by the tenant in the event of allowing or disallowing eviction under Section 11(8). Having made a survey of the evidence, we do not find that the ultimate finding of the courts below that the revision petitioner/tenant is not going to sustain much of a hardship by the order of eviction is correct. According to us, the advantage that the landlord will certainly gain i.e. the advantage of shifting portion of his lunch house business conducted in a rented building to his own building will certainly out weigh the hardship if any which may be caused to the tenant. 10. Sri. Nias as his last submission requested for one years time to vacate. According to him, at least so much of time is necessary for making arrangements for taking another building acceptable to the Civil Supplies Department, lest the ration card holders should suffer. Sri .S. Vinod Bhat, learned counsel for the respondent/landlord would fairly concede that we will be justified in granting more than the normal time to the revision petitioner for surrendering the premises. Sri .S. Vinod Bhat, learned counsel for the respondent/landlord would fairly concede that we will be justified in granting more than the normal time to the revision petitioner for surrendering the premises. Considering the circumstances of this case, we are inclined to grant one years time from today to the revision petitioner for surrendering the premises subject to the following conditions. The revision petitioner will within a period of one month from today file an affidavit before the execution court undertaking to peacefully surrender the petition schedule building to the respondent/landlord on or before the 31st of March 2010 and undertaking further to discharge arrears of rent, if any, within a period of one month and to pay the rent which falls due subsequently as and when the same falls due. Once the execution court notices such an affidavit within the time stipulated above, that court will adjourn the EP to 31/03/2010.