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2016 DIGILAW 81 (KER)

Issac Mathew v. G. Nirmala

2016-01-21

P.N.RAVINDRAN, SHAJI P.CHALY

body2016
ORDER : Shaji P. Chaly, J. This revision is preferred by the defeated tenant in RC(OP) No.43 of 2012, confirmed in RCA No.10 of 2014 of the Rent Control Court, Kollam and Rent Control Appellate Authority, Kollam respectively. RC(OP) No.43/2012 was tried along with RC(OP) Nos.20/2012, 34/2012 and 37/2012. The Rent Control Court ordered eviction in all the cases and the revision petitioner was directed to surrender vacant possession of the buildings. More particularly, in RCP No.43/2012, the subject matter of this revision, Rent Control Court has ordered eviction under Section 11(2)(b) and 11(3) of the Act. The revision petitioner herein aggrieved by the said order of eviction, preferred an appeal before the Rent Control Appellate Authority, Kollam by filing RCA No.10/2014. The appellate authority vide its order dated 22.3.2014 has affirmed the order of the Rent Control Court. 2. Brief facts for the disposal of this revision are as follows: 3. The respondent land lady has filed the eviction petition on the ground that the petition schedule building and three other rooms on the ground floor are needed for her bonafide occupation for starting a business in manufacture and sale of garments along with her husband Gopalakrishnan. The rent payable for the petition schedule room is Rs.500/- and the same was in default from September 2004 onwards. There upon notice was issued seeking the revision petitioner to vacate the building for the bonafide own occupation of the respondent and to pay the arrears of rent which has fallen due. The revision petitioner refused to comply with the directions in the notice issued and there upon the respondent herein has filed the Rent Control Petition seeking order of eviction under Section 11(3) and 11(2)(b) of the Kerala Building (Lease and Rent Control) Act (hereinafter referred to as "the Act" for short). The revision petitioner has filed objection contending that he is using the petition schedule room for running an institute in the name and style "V Institute" and that the original lease arrangement was with the father of the revision petitioner and further that the institute was started in the year 1941. The institute is offering different types of courses and that many students are studying in the said institute and since the same is an educational institution, the respondent has no legal right for filing an eviction petition against the educational institution under the provisions of the Act. The institute is offering different types of courses and that many students are studying in the said institute and since the same is an educational institution, the respondent has no legal right for filing an eviction petition against the educational institution under the provisions of the Act. It was also contended that the bonafide need sought for by the respondent is not at all true or correct. The title of the landlady to the petition schedule building is also denied by the revision petitioner even though not on specific terms, on the ground that O.S. No.397/2000 was pending before the Subordindate Judges Court, Kollam seeking partition of the property. 4. Apart from the same, the tenant sought protection of the second proviso to Section 11(3) of the Act, contending that there are no buildings available in the locality reasonably sufficient for the use and occupation of the revision petitioner and further that, the income generated from the building is the sole source of livelihood of the petitioner. The respondent has also taken out a commission. Joint trial of all the cases were conducted. Respondent examined herself as PW1, Advocate Commissioner was examined as PW2 and Gopalakrishnan was examined as PW3. Exts.A1 to A22 were marked on the side of the respondent. Two witnesses were examined on the side of the tenants and Exts.B1 to B19 documents were marked and Exts.C1, C1(a) and C1(b), commission reports were also marked. Revision petitioner has not mounted the box. The Rent Control Court after appreciating the evidence, documents and the rival contentions of the parties has found that, 1st respondent was entitled to eviction under Sections 11(2)(b) and 11(3) of the Act, having found that the schedule building was bonafidely required for the use and occupation of the respondent and arrears of rent as claimed have fallen due. Thus aggrieved by the said order, the revision petitioner has filed an appeal before the Rent Control Appellate Authority, Kollam. The Rent Control Appellate Authority after evaluating the evidence, documents and the law involved in the subject matter, re-appreciated the entire evidence and came to a conclusion that, the order of eviction passed by the Rent Control Court was in the right direction and therefore, there was no scope for any interference in the order passed. It is thus aggrieved, this revision is filed by the petitioner. 5. Heard learned counsel for the petitioner Sri. It is thus aggrieved, this revision is filed by the petitioner. 5. Heard learned counsel for the petitioner Sri. S. Vinod Bhat and learned counsel Sri. K. Subash Chandra Bose for the respondent. 6. The Rent Control Court after appreciating the evidence and the documents produced, has found that the respondent has clear title to the property and further that the bonafide need put forth by the respondent stood proved. It was also held that, the petitioner is not entitled to protection under Section 11(11)(ii) of the Act since the educational institution run by the petitioner is not a recognised one under law, which in turn was approved by the Appellate Authority. 7. The thrust of the contention advanced by the petitioner in this revision are two fold. 1) that, the sole access to the petition schedule room and other rooms situated in the first floor of the building is through the portion of the building owned by the respondent alone which has its access only to the petition schedule building, and since he is in occupation of other rooms in the first floor belonging to other landlords, if the schedule building is ordered to be surrendered, petitioner will not have any access to other rooms occupied by him in the first floor of the building. 2) that, the petitioner has produced necessary documents before the appellate authority to establish that he has got recognition for the educational institution run by him and therefore, the petitioner is entitled to get protection under Section 11(11)(ii) of the Act. 8. So far as the first point is concerned, we have not come across any provision under the Act disabling the landlady from seeking eviction of the petition schedule room on the ground that the sole access to the first floor of the building is through a building owned by the respondent. Therefore, the said contention can never be sustained. Merely, because the access to the first floor is through the petition schedule building, that by itself will not disable the landlady to seek eviction. Therefore, the said contention can never be sustained. Merely, because the access to the first floor is through the petition schedule building, that by itself will not disable the landlady to seek eviction. This point was raised by the revision petitioner before the Rent Control Court and the Rent Control Court after appreciating the facts and circumstances and the law, has arrived at a categoric finding that the said point raised by the petitioner will not disable the landlady to secure eviction if the landlady is able to establish the bonafide need projected under Section 11(3) of the Act. The Appellate Authority has also considered the said point raised by the revision petitioner and has found that the revision petitioner cannot non suit the landlady on the ground that the sole access to the first floor is through the petition schedule building. This factual aspect intertwined with certain measure of legality, appreciated by the courts below and found against the revision petitioner, in our view, cannot be pressed into service by the revision petitioner since no legal prohibition is created against the landlady to seek eviction in such a situation. The tenant can call upon the landlord of the upstairs portion to provide a stairway. The tenant has no case that a separate stairway cannot be provided by the owner of the upstairs portion in his possession. Utilising modern construction techniques a stairway can be provided to the upstairs portion. There are no circumstances pointed out by the revision petitioner before us to exercise the power of revision in that regard. 9. In order to appreciate the second point raised by the revision petitioner, Section 11(11)(ii) is extracted hereunder for convenience: "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" On a reading of Section 11(11)(ii) it is clear that a prohibition is created against the landlady from seeking eviction under sub- sections 1 to 10 under Section 11. But the prohibition under sub-clause (ii) is interdicting the landlady, from invoking sub- sections 1 to 10 to seek eviction of the tenant, if the tenant is in occupation of the petition schedule building which has been let out for use as an educational institution and is actually being used as such and further, the institution has been recognised by the Government. Looking at the phraseologies employed it is clear that the interdiction created thereunder apply only if the building was let out for use as an educational institution and the same is being used as such and the educational institution has been recognised by the Government or any other authority empowered thereunder. According to us, which thus means, the stipulations/qualifications should have been existing at the time of letting out the building itself. In other words the conditions prescribed should be co-terminus with the original lease. 10. The revision petitioner has not produced any documents before the Rent Control Court to establish conclusively that he is entitled to get the protection of Section 11 (11)(ii). Therefore, the Rent Control Court found that the revision petitioner is not entitled to get the protection of the said provision and further that the landlady is not prohibited from seeking eviction of the revision petitioner. However, tenant has produced photocopy of certain documents before the Rent Control Appellate Authority along with an I.A. seeking to accept the same. We had occasion to peruse the said documents handed over to us across the Bar by the learned counsel for the petitioner and what we have gathered is that, the Director of Technical Education, Thiruvananthapuram has issued orders granting recognition to V Telegraph and Wireless Institute, Near St.Alosius HSS, Altharamood Junction, Kollam for the period from 1991 onwards and upto 2016. Arguments based on the said documents were pressed into service to canvass the proposition that since the educational institution run by the petitioner is a recognised one, the revision petitioner is entitled to get protection of the same. As pointed out by us earlier, in order to secure the said protection, stipulations thereunder are to be proved, which thus means in order to secure the advantage of the said prohibition heavy burden is cast upon the tenant to plead so in the objection and prove the same in accordance with the terms and conditions stipulated thereunder. As pointed out by us earlier, in order to secure the said protection, stipulations thereunder are to be proved, which thus means in order to secure the advantage of the said prohibition heavy burden is cast upon the tenant to plead so in the objection and prove the same in accordance with the terms and conditions stipulated thereunder. We have perused the objection filed by the revision petitioner before the Rent Control Court and the objections raised alleged to be in terms of Section 11(11)(ii) are as follows: "This respondent is conducting an educational institution in petition schedule room. Different types of courses were conducting in the institution and so many students are studying there in different types of courses. The petitioner has no legal right for filing an eviction petition against an educational institution under the provisions of the Rent Control Court. Since it is an educational institution running from years and years back, she has no right to file this petition." 11. According to us, the pleadings made by the petitioner is self explanatory. Nowhere has the petitioner pleaded in accordance with the stipulations contained under Section 11(11)(ii) and that by itself prohibits the petitioner from raising a contention to the effect that he is entitled to get protection of the said provision of law. Moreover, petitioner could not establish either before the Rent Control Court or the Appellate Authority that the building was let out to accommodate a recognised educational institution. Even according to the petitioner, the building was let out in the year 1941. Even if the documents produced by the petitioner before the Appellate Authority are taken into account, the petitioner cannot seek support of Section 11(11)(ii). 12. Learned counsel for the respondent who appeared on Caveat submitted that the said question raised by the petitioner is no more res integra in view of the judgment of the Division Bench of this Court in George v. Ramachandra Reddiar reported in 2001(1) KLT 459 . On perusal of facts contained in the judgment supra, we find that similar contentions were raised by the tenant therein and this Court after evaluating the circumstances and appreciating the law, in paragraphs 7 and 8 has concluded that Section 11(11)(ii) of the Act takes within its sweep only cases where the letting is for use as a recognised educational institution and the building is actually used for that educational institution. It is also found that the letting of the building therein to one Thankappan for the use of an institute which may or may not be an educational institution and Thankappan might have been used the building for the purpose of the institution, and thereupon held that, there is no case that on the day the lease was granted to Thankappan, the institution was a recognised educational institution. That apart, we find that the documents produced before the Appellate Authority is not a conclusive proof to establish that the institution run in the petition schedule building is a recognised one by the State Government, especially due to the fact the address of the petition schedule building differs from the address mentioned in the said documents. 13. So also a learned Single Judge of this Court (Justice Chettur Sankaran Nair) in K.K. Rama Iyer v. Additional District Judge and Others reported in 1992(1) KLJ 436 , 1992 (1) KLT 486 , has found that in order to secure the benefits of the said provision, the proof of conditions prescribed was a necessary corollary. To arrive at such a conclusion, learned Single Judge has conducted a thorough survey in order to find out the true meaning of education propounded by great philosophers and men of eminence of yesteryears. Taking cue from the theories mooted by Aristotle, Plato, John Amos Comenius and Jean Jacques Rousseau, learned Single Judge has outlined the philosophy of education and held as follows: "To get the benefit under Section 11(11)(ii) the institution should not only be an educational institution, but should also be an educational institution recognised by Government. Not all terms nor all concepts are amenable to precise definition. They are better understood, than defined. The expression "education" is one such. There is no single test, nor yeardstick, available to determine whether a particular activity, is educational in character. The intangibles are incommensurable. Any form of knowledge enables one to earn a livelihood, is not education. What equips one to earn a livelihood, is more appropriately described as "trade" or vocation. It may be that education also helps one to make a living. But, that is not the end itself. Education, dominantly is a process which cultivates the mind. It may be argued that not all educational institutions, elevate the alumni to a level of moral or cultural attainment. It may be that education also helps one to make a living. But, that is not the end itself. Education, dominantly is a process which cultivates the mind. It may be argued that not all educational institutions, elevate the alumni to a level of moral or cultural attainment. That will be an instance of the institution failing in its endeavour, and not the institution losing its character." 14. The discussion made by the learned Single Judge with the philosophical and social theories propounded by the great men referred supra about education has eventually turned out to be a treatise on education which ultimately culminated in a proper definition to the educational institution provided under Section 11(11)(ii). Thus taking into account the seriousness and importance of the word "education" provided therein, we are also of the considered opinion that a heavy burden is also cast upon the tenant to prove that the building was let out to him for conducting a recognised educational institution and he continues the exercise ever since his occupation of the building till termination of the same. 15. Therefore, we have no hesitation to arrive at a finding that not only that the tenant to prove the building was let out for use as an educational institution and is actually being used as such, but also to prove that the tenant was imparting education in the institution continuously ever since its letting. At no point of time the said burden cast upon the tenant will shift to the landlady. That apart letting of building for use as a recognised institution will not render the benefit provided thereunder to the tenant as a boon, if the said activity is discontinued by the tenant. 16. Educational institution is defined in Black's Law Dictionary, 9th Edition as follows: "1. A school, seminary, college, university, or other educational facility, though not necessarily a chartered institution. 2. As used in a zoning ordinance, all buildings and grounds necessary to accomplish the full scope of educational instruction, including those things essential to mental, moral and physical development." But at the same time when institute is read independently of education, no meaning can be gathered to suit the institute mentioned in the said provision. Chambers 20th Century Dictionary defines institute to mean "to educate" and education thereunder is defined as "to bring up and instruct, to teach, to train". Chambers 20th Century Dictionary defines institute to mean "to educate" and education thereunder is defined as "to bring up and instruct, to teach, to train". But Chambers Dictionary does not define the term "educational institution". Therefore the phraseology 'educational institution' may have to be understood by the legal meaning provided under Black's Law Dictionary and the etymological or generic meaning provided under the general dictionary. Taking into account the meaning so provided and appreciating the same against the educational institution provided under Section 11(11)(ii), the proof that is required is, for imparting education. Viewed in that circumstances and taking into account the evidence let in by the tenant, we are of the firm opinion that there is no evidence at all to prove that the revision petitioner is entitled to get any advantage under the said provision. 17. On appreciation of rival contentions, perusal of the evidence on record and the pleadings, we are reminded ourselves of the jurisdiction conferred on us under Section 20 of the Act which is also well settled on various judicial pronouncements. We do not find any illegality, irregularity or impropriety in the orders passed by the authorities below. 18. As a last submission, learned counsel for the petitioner submits that one year time may be granted for the revision petitioner to vacate the premises. After evaluating the facts and circumstances, we are inclined to grant 6 months' time for the revision petitioner to vacate the petition schedule building but on terms. The revision petitioner shall file an affidavit before the Execution Court/Rent Control Court, Kollam within a period of three weeks from the date of receipt of a copy of this judgment. (1) undertaking to unconditionally surrender the petition schedule building on or before 15.06.2016. (2) that the entire arrears of rent shall be paid by the revision petitioner to the respondent within a period of three weeks from the date of receipt of a copy of this judgment. (3) that the current rent falling due shall be paid on or before the 4th day of the succeeding month. (4) If any of the conditions are violated by the revision petitioner, the respondent shall be at liberty to seek delivery of the petition schedule building forth with. Therefore, the revision fails and accordingly the same is dismissed, however subject to the time granted for surrender on conditions.