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2012 DIGILAW 950 (KER)

N. K. Balan, Perumbavoor v. C. Anees, Perumbavoor

2012-10-18

A.V.RAMAKRISHNA PILLAI, PIUS C.KURIAKOSE

body2012
JUDGMENT Ramakrishna Pillai, J. 1. The tenants, who faced orders of eviction in two separate proceedings instituted by the same landlord under Sections 11(2)(b), 11(3) and 11(4) (iii) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act'), are before us in revision. 2. The rent control petitions were sought to be maintained on the basis of rental arrangements between the petitioners and the previous owner of the premises and subsequent atonement by the petitioners with the respondents (hereinafter referred to as 'the landlords') after purchase of the premises by the landlords on 28/1/1984. 3. The allegation of the landlords in the context of the ground of arrears of rent against the petitioner in R.C.R No.118/2011 (hereinafter referred to as 'tenant No.1') who is running a bakery in the name and style 'Prabath Bakery' in the tenanted premises is that the current monthly rent payable by him is Rs.300/-and that he has paid rent at that rate for the period up to 31/12/2003 and thereafter, defaulted payment and despite a statutory notice he did not discharge the arrears. In the same context, the allegation against the petitioner in R.C.R.No.142/2011 (hereinafter referred to as 'tenant No.2') who is running a stationary shop in the adjacent room is that the current monthly rent payable by him is Rs.500/-and that he has paid rent at that rate for the period up to 31/3/2004 and thereafter, defaulted payment and there was no discharge in spite of statutory notice. 4. In the context of ground of eviction under Section 11(3), landlords claimed that they, who are conducting a well established Hospital and Nursing Home at Perumbavoor, are experiencing shortage of space in the nursing school. Hence, they have decided to construct one more floor above the existing building of the nursing school and a decision to that effect was taken by the Administrative Committee of the hospital. Pursuant to that an application for permit was submitted before the local authority which was forwarded to the Chief Town Planner, Thiruvananthapuram, for approval. Hence, they have decided to construct one more floor above the existing building of the nursing school and a decision to that effect was taken by the Administrative Committee of the hospital. Pursuant to that an application for permit was submitted before the local authority which was forwarded to the Chief Town Planner, Thiruvananthapuram, for approval. The Chief Town Planner issued the permit subject to the following rider: "An access of minimum 7.00 metres shall be provided from Aluva-Munnar road to the proposed building by demolishing the shop situated by the side of the above said road conveniently." The landlords allege that the access suggested as above would be accomplished only by utilising the situs of the premises occupied by the tenants and therefore, they are in bona fide need of the petition schedule rooms to carry out the construction in accordance with the plan after demolishing the same. Anticipating the contention by the tenants, it was further alleged that the tenants are not depending mainly on the income from the business carried out in the petition schedule premises and that several buildings are available in the locality for the tenants to shift their business, if it becomes necessary. 5. In the context of eviction under Section 11(4)(iii), it was alleged that tenant No.1 is running another bakery in the shop room No.XVII/1811 near the petition schedule room under the name and style 'Best Bakery' and tenant No.2 had purchased a land with building situated 100 metres away from the tenanted premises and a new shopping complex is being constructed there by him. 6. The tenants who resisted the petitions, stoutly denied the allegations in the petitions. They contested the eviction petitions on various grounds including denial of title, denial of landlord-tenant relationship and claiming other independent right, title and interest in the tenanted premises, non-joinder of necessary parties, lack of bona fides, lack of need for the alleged demolition of the building, concealment of the true facts etc. 7. The Rent Control Court after full-fledged separate trial in both the cases, ordered eviction of the tenants under Sections 11(2)(b) and 11(3) of the Act. However, eviction under Section 11(4)(iii) was disallowed. Though tenant No.1 took the matter in appeal before the Appellate Authority, it was without success. It is against that decision, he has preferred R.C.R.No.118/2011. 7. The Rent Control Court after full-fledged separate trial in both the cases, ordered eviction of the tenants under Sections 11(2)(b) and 11(3) of the Act. However, eviction under Section 11(4)(iii) was disallowed. Though tenant No.1 took the matter in appeal before the Appellate Authority, it was without success. It is against that decision, he has preferred R.C.R.No.118/2011. In the appeal filed by tenant No.2, the Appellate Authority upheld the denial of title set up by him. Against that decision, the landlords came up before this Court in R.C.R. No.165/2008. This Court set aside the order of the Appellate Authority holding landlord-tenant relationship and remanded the case to the Appellate Authority for deciding the merits of the claim for eviction under Section 11(3) including, the tenant's eligibility for protection under the second proviso to Section 11(3). The decision declining eviction under Section 11(4)(iii) was, however, confirmed. Though tenant No.2 preferred S.L.P No.3175/2010 against that order before the Apex Court, it was dismissed. The Appellate Authority after remand, deputed a Commissioner at the instance of tenant No.2 to inspect the tenanted premises and the surroundings and obtained a report. Both sides were permitted to adduce additional evidence. The Appellate Authority after appreciating the evidence already on record as well as the additional evidence adduced by both sides dismissed the appeal and confirmed the orders of eviction under Section 11(3). It is against this, tenant No.2 has filed 8. Arguments have been heard and the impugned judgments as well as the orders of the Rent Control Court were perused. The orders of eviction under Section 11(2)(b) of the Act no longer survive as the same were subject to the right of the tenants under Section 11(2)(c) of the Act. 9. The common argument advanced by the learned Senior Counsel for tenant No.2 and the learned counsel appearing for tenant No.1 is that the claim for eviction under Section 11(3) of the Act would not be sustainable in view of the subsequent developments resulting in absence of any need for the petition schedule premises. It was submitted that the landlords have acquired over five acres of land to construct a multi storeyed building at a nearby place and had already shifted the College of Nursing to the said building. The said building itself is sufficient to accommodate the School of Nursing also, it was argued. It was submitted that the landlords have acquired over five acres of land to construct a multi storeyed building at a nearby place and had already shifted the College of Nursing to the said building. The said building itself is sufficient to accommodate the School of Nursing also, it was argued. It was further submitted that the large building near the petition schedule rooms wherein the already shifted College of Nursing was run, was more than three times sufficient and more suitable to run the nursing school for which additional construction was now projected as a need. 10. Reminding ourselves of the well delineated contours of the revisional jurisdiction of this Court under Section 20 of the Act, we made a quick survey over the evidence on record to satisfy ourselves whether the court below has appreciated the evidence in the correct perspective. Evidently, the landlords submitted an application before the local authority for granting permit to construct one more floor over the existing building where the nursing school is housed. It is also in evidence that the application which was forwarded to the Chief Town Planner who issued the building permit with a rider that an access having a width of minimum seven metres shall be provided from Aluva-Munnar road lying on the northern side to the existing building by demolishing the tenanted premises situated by the side of the said road. Thus, according to the landlords, the situs of the petition schedule rooms is required for providing a seven metre wide road to the nursing school compound from the Aluva-Munnar road. 11. To have a clear idea regarding the location of the hospital complex, allied structures as well as the tenanted premises, we asked the landlords to produce the photographs of the site including the hospital, nursing school, tenanted premises and surroundings taken from different angles. We could get the following picture regarding the lie of the hospital, nursing school compound and tenanted premises from the photographs so produced and also from the description given in the report submitted by the Commissioner deputed by the Appellate Authority: The hospital run by the landlords is situated near the private bus stand at Perumbavoor. It is on the southern side of Aluva-Munnar road. The hospital complex is spread over 2= acres of land. A pathway connects the hospital to the Aluva-Munnar road. It is on the southern side of Aluva-Munnar road. The hospital complex is spread over 2= acres of land. A pathway connects the hospital to the Aluva-Munnar road. The said pathway is bounded on the east by certain shop rooms and on the west by a hotel. The hospital complex consists of two five storeyed buildings connected by a corridor. One of these buildings is new. About 30 cents of land in the hospital complex is set apart for car parking. On the northern side of the hospital is the building where the School of Nursing is housed. It is a three storeyed building. General Nursing Courses and other Para Medial Courses are conducted in the School of Nursing as seen from the Commissioner's report. Hostel facilities are also provided in the same building. There is yet another hostel on the south-western side of the hospital where para medical students are accommodated. The existing entry to the compound of School of Nursing from the Aluva-Munnar road is through a lane having a width of 2.9 ft. which is bounded on the east at the entry point by the stationery shop run by tenant No.2. Adjacent to the said room, on its eastern side, is the shop room occupied by tenant No.1. According to the Commissioner, 150 students are studying in the School of Nursing and the building consists of approximately 50 rooms. It is over the said building that the landlord wants to construct another floor due to scarcity of space. 12. As already pointed out, tenant No.2 in the memorandum of revision would allege that the landlords have acquired a large plot where they have constructed a building to which the College of Nursing was shifted and there is enough space in the said building to accommodate the School of Nursing also. It is stated that the area previously occupied by the College of Nursing can also be utilised for the same. The learned Senior Counsel for tenant No.2 would submit that the School of Nursing has been shifted to the new building and hence, the alleged need exists no longer. According to the learned Senior Counsel, this fact, which cuts the very root of the alleged need, was not seriously taken note of by the learned Appellate Authority who found that the need still persists as the hospital and other allied structures are continuing in the old premises. According to the learned Senior Counsel, this fact, which cuts the very root of the alleged need, was not seriously taken note of by the learned Appellate Authority who found that the need still persists as the hospital and other allied structures are continuing in the old premises. 13. It is here we should hold a clear dichotomy between the proximate need and the ultimate need projected by the landlords for the purpose of eviction under Section 11(3) of the Act. We are of the considered view that if the proximate need of the landlords continues to exist in spite of the subsequent course of events which may or may not have a bearing on the ultimate need, the claim for eviction under Section 11(3) of the Act has to be allowed. The proximate need of the landlords is to have seven metre wide access to the compound of School of Nursing for constructing one more floor over the existing building as per the permit issued by the Chief Town Planner. The alleged construction is for augmenting scarcity of space in the existing building. An additional floor can be constructed over the existing building only if the rider in the permit issued by the Chief Town Planner is honoured. The ultimate need of the landlords may be to house any of the wings of their institutions in the additional floor. The landlords are running a hospital as well as allied institutions in the field of health care in a creditable manner. The fact that the landlords have acquired a large area where they have constructed a multi storeyed building for housing the College of Nursing, would indicate that the field of activities of the landlords is expanding. The hospital is still functioning in the old complex in the heart of Perumbavoor town. The only way to provide more space in the old complex is by adding floors to the existing buildings as they cannot have sprawling constructions covering the entire land which would offend building rules. The tenants need not worry over the ultimate use to which the newly constructed floor would be put, as it is within the choice of the landlords. Shifting of a portion of the School of Nursing to the new complex shows that the landlords were in urgent need of space. The same would only strengthen their claim. 14. The tenants need not worry over the ultimate use to which the newly constructed floor would be put, as it is within the choice of the landlords. Shifting of a portion of the School of Nursing to the new complex shows that the landlords were in urgent need of space. The same would only strengthen their claim. 14. The College of Nursing run by the landlords which is of recent origin is about 5 KMs. away from the hospital complex and is on the side of a Panchayat road, according to the commissioner's report. The compound is spread over 5 acres of land having a massive multi storeyed building with modern facilities. So long as the hospital and other allied structures are continuing in the old complex, the need for additional space will always press for a solution, which can be solved only by providing additional floors in the existing buildings. An additional floor can be constructed only in accordance with the permit which mandates a seven metre wide access from Aluva-Munnar road. So long as the proximate need to have an additional floor being constructed has not been satisfied, the subsequent change of event, if any, like shifting of the College of Nursing or School of Nursing to yet another compound has no relevance at all. 15. The further argument was that the learned Appellate Authority failed to take note of the fact that the existing way to the compound of the hospital can be made use of by the School of Nursing also as both are lying adjacent. However, it can be seen from the report of the Commissioner, who was deputed by the Rent Control Court that, the way leading to the hospital from Aluva-Munnar road is having a width of 3.4 metres only. It is further reported that the compound of School of Nursing as well as the compound of the hospital are lying at two different levels. 16. The tenants now allege mala fides against the Chief Town Planner in issuing the permit. It has to be remembered that the Chief Town Planner has issued the permit during the course of his official duties. Official acts are presumed to be done properly unless proved otherwise. Of course, this presumption can be rebutted by the party challenging the same by adducing cogent evidence. Unfortunately, no evidence is forthcoming to dislodge the presumption. 17. It has to be remembered that the Chief Town Planner has issued the permit during the course of his official duties. Official acts are presumed to be done properly unless proved otherwise. Of course, this presumption can be rebutted by the party challenging the same by adducing cogent evidence. Unfortunately, no evidence is forthcoming to dislodge the presumption. 17. It was argued by the learned counsel for tenant No.1 that for providing seven metre wide access, both the tenants need not be evicted and the road having a width of seven metres can be provided by demolishing the room occupied by tenant No.2 and a portion of the shop room occupied by tenant No.1. 18. However, the learned counsel for the landlords would submit that once the seven metre wide access is provided, the entrance has to be guarded by a gate. For that pillars have to be erected. So long as the way opens to the main road, a watchman's cabin also will have to be provided by the side of the gate. A width of seven metres is the minimum required by the permit. That does not mean that the width of the road should be confined to seven metres only and the landlords should sacrifice other amenities for protecting the interest of the tenant. 19. On a totality of the evidence now placed on record, it is very clear to our mind that the need alleged is bona fide and the same still exists. The landlords are running institutions in the field of health care which are being expanded. Such expansion require additional space which can be provided only by way of constructing additional floors in accordance with the permit secured by them. So long as the permit mandates a way wider in size, the space now occupied by the tenanted premises have to be utilised. For that, the petition schedule buildings are to be demolished. 20. The first proviso to Section 11(3) does not have application in these cases as the tenants were sought to be evicted by the landlords not for occupying the shop rooms but for demolishing those shop rooms for getting the situs for widening the access to the nursing school compound. 21. 20. The first proviso to Section 11(3) does not have application in these cases as the tenants were sought to be evicted by the landlords not for occupying the shop rooms but for demolishing those shop rooms for getting the situs for widening the access to the nursing school compound. 21. Coming to the second proviso to Section 11(3), we notice that though both the tenants have pleaded that they are mainly depending upon the income derived from the business set up in the tenanted premises, they have not adduced any evidence to establish their case. The Advocate Commissioner deputed at the trial stage reported that other shop rooms are available in the locality. The net result is that the tenants upon whom the burden is cast to prove that they are entitled to the benefit of both limbs of the second proviso have not discharged their burden by any cogent evidence. Both the courts below have appreciated the evidence in the correct perspective and have arrived at the conclusions which do not call for interference by this Court in exercise of the revisional powers under Section 20 of the Act. 22. In the result, the revision petitions fail and are accordingly dismissed. 23. However, we are of the view that the revision petitioners have to be given a breathing time to surrender the tenanted premises, as they will have to find an alternate space to shift their business. Taking into account all relevant circumstances, we grant to the revision petitioners time up to 31/1/2013 to give vacant possession of the tenanted premises subject to following conditions: 1) The revision petitioners shall file separate Affidavits, within one month from today before the Execution Court or the Rent Control Court, as the case may be, undertaking to surrender vacant possession of the tenanted premises occupied by them, peacefully to the respondents/landlords on or before 31/1/2013. 2) The revision petitioners shall remit the entire arrears as on today before the execution court or Rent Control Court as the case may be within three months from today with notice to the respondents. 3) The revision petitioners shall pay charges towards use and occupation of the building at the current rent rate from today till they give vacant possession of the tenanted premises to the respondents. 3) The revision petitioners shall pay charges towards use and occupation of the building at the current rent rate from today till they give vacant possession of the tenanted premises to the respondents. 4) The execution proceedings, if any, pending before the Execution Court shall be kept in abeyance till 31/1/2013.We make it clear that the revision petitioners will get the benefit of time as above, only if, they file the Affidavits in time, honour the undertaking contained therein and discharge the entire arrears of rent as on date.