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2021 DIGILAW 398 (KER)

K. Haridasan v. P. K. Mohanan, S/o. Chandukutty

2021-04-07

A.HARIPRASAD, ZIYAD RAHMAN A.A.

body2021
ORDER : Ziyad Rahman A.A., J. Both these Revision Petitions are filed by the Petitioner/landlord in RCP.No.184/2014 on the file of the Rent Control Court/Principal Munsiff-II, Kozhikode. The aforesaid Rent Control Petition was filed by the revision petitioner herein, seeking eviction of respondents/tenants from the petition schedule buildings, under Section 11 (3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as the Act). The Rent Control Court allowed the said petition, holding that the need set up by the landlord is bonafide and hence ordered eviction of the respondents/tenants. Challenging the aforesaid order of eviction, respondents 1 to 5 herein filed RCA.No.22/2017 and the 6th respondent filed RCA.No.19/2017 before the Rent Control Appellate authority, Kozhikode. Both the said appeals were allowed by the Rent Control Appellate Authority, as per a common judgment dated 27/07/2017, and challenging the said appellate orders, these revision petitions were filed. (Hereinafter in this judgment, the parties are mentioned as per their respective status in cause title in the Rent Control Petition). 2. The case advanced by the petitioner/landlord is as follows: The property described as petition A schedule property, originally belonged to the father of the petitioner. The aforesaid property was bequeathed in favour of the petitioner through a Will, jointly executed by his father and mother. In the Petition A schedule property, there is an old two storied building. Two rooms on the ground floor of the southern portion of the said building is described as Petition B schedule, and the said building was entrusted to one Sahadevan, by the father of the petitioner as per the Registered Kachit bearing No.173/1966, for the purpose of running a grocery shop. After the death of the said Sahadevan in the year 1995, respondents 1 to 5, who are the wife and children of the said Sahadevan, continued the lease arrangement and are paying the rent of the building. It was also contented that, since the Respondent Nos 3 to 5 are having other sources of income, the 2nd Respondent is conducting business in the petition B schedule room. It was further contended that, the 2nd Respondent is also running a supermarket in the name and style “Sahadevans Sons” in a commercial building constructed by him in a property situated just opposite to the Petition Schedule building. It was further contended that, the 2nd Respondent is also running a supermarket in the name and style “Sahadevans Sons” in a commercial building constructed by him in a property situated just opposite to the Petition Schedule building. Apart from the Petition B schedule property, two shop rooms situated on the eastern side of the petition B schedule building, are also in the possession of 2nd Respondent, on the strength of a mortgage deed bearing No.2314/1995 entered into between the petitioner and the 2nd Respondent. The aforesaid building is shown as Petition C schedule building and seeking redemption of mortgage in respect of the said property, the petitioner has already filed O.S.No.133/2016 before the Additional Munsiff Court-II, Kozhikode which is pending consideration. Petition D schedule building, which is the 3rd room from the South, on the ground floor of the entire building was entrusted to 6th Respondent by the father of the petitioner in the year 1991. Similarly, the 4th room on the northern side on the ground floor of the entire building and the room on its eastern side are described as Petition E schedule building and the same 7th was entrusted by the father of the petitioner to the 7th Respondent. The Petition F schedule building was entrusted to the 8th Respondent by the father of the petitioner as per Kachit bearing No. 3166/1990. It was further contended that, even though the 8th Respondent surrendered vacant possession of the building to the petitioner, no release deed has been executed by him. According to the petitioner/landlord, entire petition A schedule property and the buildings situated therein are adjacent to National Highway bypass and he wants to construct a commercial shopping complex utilizing the entire property. As per the plan drawn in conformity with the Building Rules, the old building, consisting of petition schedule buildings, is to be demolished for the purpose of providing mandatory space for set back and also for providing parking space for the commercial complex proposed by him. The eviction of the Respondents was sought in the above circumstances. 3. Respondent No.1 to 5, filed a counter statement denying the averments in the rent control petition. The genuineness in the need put forward by the landlord was seriously disputed. The allegation that the 2nd Respondent is conducting a supermarket in a property near to the petition schedule building was also denied. 3. Respondent No.1 to 5, filed a counter statement denying the averments in the rent control petition. The genuineness in the need put forward by the landlord was seriously disputed. The allegation that the 2nd Respondent is conducting a supermarket in a property near to the petition schedule building was also denied. Similarly, 6th Respondent also filed a counter statement denying the averments contained in the rent control petition. It was contented that the petitioner does not have the financial capacity to start the proposed commercial complex and the need alleged in the petition is not bona fide and only a ruse to get eviction. No counter statement has been filed by the 7th Respondent. 4. The evidence from the side of the petitioner consists of oral testimony of petitioner as PW1, and the oral evidence of PW2. The documentary evidence marked from the side of the petitioner are Exts. A2 to A17. From the side of the Respondents, there is oral testimony of 2nd Respondent as RW1 and Exhibits B1 to B7 were marked. 5. After the trial, the Rent Control Court allowed the said petition and directed the Respondents to surrender vacant possession of the Petition B, D, and E schedule buildings, within a period of one month from the date of the order. 6. Being aggrieved by the aforesaid order, respondents 1 to 5 filed RCA.No.22/2017 before the Rent Control Appellate authority/1st Additional District Judge, Kozhikode. Similarly the 6th Respondent filed RCA.No. 19/2017 before the Rent Control Appellate Authority. Kozhikode. Now both the above Rent Control Appeals are disposed of by a common judgment by the Rent Control Appellate Authority, Kozhikode as per the judgment dated 27/07/2017, holding that the petition filed by the landlord under Section 11 (3) of the Kerala Buildings (Lease and Rent Control) Act is without any bonafides. The aforesaid finding was mainly entered into by the Appellate Authority, by observing that, in the facts and circumstances of the case, the landlord should have filed an application under Section 11(4 (iv) of the Act for reconstruction of the building, instead of filing it under Section 11 (3). 7. Challenging the above judgment, these revision petitions are filed by the landlord. During the pendency of the above revision petitions, the revision petitioner/landlord filed I.A. No. 1 /2021 in RCR.No.179/2018, with a prayer to record an undertaking made by him. 7. Challenging the above judgment, these revision petitions are filed by the landlord. During the pendency of the above revision petitions, the revision petitioner/landlord filed I.A. No. 1 /2021 in RCR.No.179/2018, with a prayer to record an undertaking made by him. The undertaking which is sought to be recorded is as follows: “Considering the fact situation, I respectfully submit that I am prepared to give a room to the 1st respondent in the proposed building. I fairly believe that I will get a favourable decree in O.S.133/2016 pending before the civil court. On getting vacant possession of that room, I will demolish the existing building and commence construction of the new building and a room will be offered to the 1st respondent which he is free to avail on payment of fair rent. I have no objection in the 1st respondent occupying petition D schedule property till I get vacant possession of petition B and C schedule properties and demolish the same subject to he paying the admitted rent.” 8. The learned counsel for the Revision Petitioner pointed out that, the aforesaid petition was intended to be filed in RCR.No.176/2018, but mistakenly the same was happened to be filed in RCR.No.179/2018. On going through the cause title of the petition also, it can be seen that it is the cause title of RCR.No.176/2018. 9. Heard Sri P.A.Harish, the learned counsel for the revision petitioner and Sri.R.Sudhish, the learned counsel for the Respondents. 10. The main contention put forward by the learned counsel for the landlord is that, the need set up by the landlord is bona fide and the contrary finding entered into by the Rent Control Appellate Authority is liable to be set aside. It is his specific case that, he is intending to demolish the entire building which is now in existence in the Petition ‘A’ schedule property, and to construct a commercial shopping complex in the said property for the purpose of ensuring regular income therefrom. He has also produced Ext.A15 Building Permit and Plan, for constructing a commercial shopping complex consisting of 3 floors. On the other hand, learned counsel for the Respondents contented that, the landlord does not have the financial capacity to carry out the construction as claimed by him, and he is also not having any intention to do so. He has also produced Ext.A15 Building Permit and Plan, for constructing a commercial shopping complex consisting of 3 floors. On the other hand, learned counsel for the Respondents contented that, the landlord does not have the financial capacity to carry out the construction as claimed by him, and he is also not having any intention to do so. According to him the need set up by the landlord is only a ruse to evict the respondents herein. 11. On going through the judgment rendered by the Rent Control Appellate authority, it is seen that the appeals filed by the tenants are allowed on the ground that, the need put forward by the landlord will not attract Section 11(3) of the Act and the landlord should have submitted the application under 11(4) (iv) of the Act. The main ground on which the appellate authority came to such conclusion is that, as the landlord wanted to demolish the existing building and to construct a commercial shopping complex for the purpose of letting out the said building to other tenants, the tenants are entitled for statutory protection under section 11(4) (iv) and the same cannot be denied by granting the relief to the land lord under section 11(3). This was the main ground on which, the appeals were allowed. Thus, the only question to be decided in this case is whether landlord is entitled to pursue an application under 11(3) of the Act in the facts and circumstances of the case or not. 12. For the purpose of considering the said issue, a reading of Section 11(3) is necessary which is extracted hereunder; “Section 11 (3) A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him”. 13. As per the above provision, it is evident that the crucial requirement for attracting the said provision is, own occupation of the landlord or the occupation by member of his family depending upon him. Therefore the crucial importance is own “occupation”. 13. As per the above provision, it is evident that the crucial requirement for attracting the said provision is, own occupation of the landlord or the occupation by member of his family depending upon him. Therefore the crucial importance is own “occupation”. In a large number of decisions rendered by the Hon’ble Supreme Court and also by this Court, it is held that the expression “occupation” used in Section 11(3) is to be interpreted in a wider sense so as to include, requirement of the land lord to utilise the said property for the beneficial enjoyment of any other building of the landlord, situated close to the building sought to be evicted. It is also a well settled position of law that, it is not necessary for the landlord that he should retain the said building for his occupation. He is well within his rights to demolish the existing building for utilizing the property for beneficial purposes as mentioned above, if he is able to substantiate that the need set up by him is otherwise genuine. It is also held in various judgments that, the need put forward by the landlord for demolishing the building and to use the space occupied by the building for the purpose of using it as a pathway, vehicle parking, for using it as a vacant place for any other building in vicinity and belonged to the land lord etc, are matters coming within the purview of section 11 (3) of the Act (See 1969 KLT 133 (Sarada V. Kumaran), 1988(1) KLT 131 (Krishna Menon V. District Judge), ILR 1994 (3) Ker 109 (Daniel V. M.G. George) and 2007 (4) KHC 155 (George Pylee V. K.K.Sabu), 2007(3) KLT 599 (Kunhamma V. Akkali Purushothaman) 14. However on perusal of the factual situation in the above judgments, it is evident that the need set up by the respective landlords were for providing additional amenities to the existing buildings of their own, situated in the near vicinity, by demolishing the respective petition schedule buildings. The factual details of the said cases are as follows: Judgment Factual position 1969 KLT 133 (Sarada Vs Kumaran) The landlord wanted to construct a lodging house in the nearby property for which, the approach road was to be widened, after utilising the space where the petition schedule was situated. The factual details of the said cases are as follows: Judgment Factual position 1969 KLT 133 (Sarada Vs Kumaran) The landlord wanted to construct a lodging house in the nearby property for which, the approach road was to be widened, after utilising the space where the petition schedule was situated. 1988(1) KLT 131 (Krishna Menon Vs District Judge) The landlord wanted to demolish the petition schedule building for using the said space as a passage to the new multi-storeyed building already constructed by him behind the tenanted premises. ILR 1994 (3) Ker 109(Daniel VsM.G.George) The landlord wanted the space of the tenanted building as a parking space for the building constructed by the landlord behind the petition schedule building 2007 (4) KHC 155 ) George Pylee Vs K.K.Sabu), The landlord wanted to demolish the petition schedule building to construct a new building to accommodate his intended business of computer software development 2007 (3) KLT 599 (Kunhamma Vs Akkali Purushothaman The landlord wanted to demolish the petition schedule building to widen the pathway leading to the residential building situated behind the petition schedule building 15. Apart from the above, in the judgment reported in Gopalakrishnan K. v. K.Maqbool Sha [ 2019 (4) KHC 521 ], a Division Bench of this Court, in which one among us was a party (A.Hariprasad, J), held that need of the landlord to provide a passage through the land, to another building of the landlord situated in the vicinity, by demolishing the petition schedule building, can be entertained under Section 11(3) of the Act. That was a case in which the landlord, who was a Chartered Accountant by profession, was conducting his office in the adjacent building and it was for the purpose of that building, the demolition of the petition schedule building was sought for. It was held in the said judgment that, merely because of the reason that a portion of the building which is already in occupation of the landlord for conducting his office, was let out to a financial institution, his need cannot be treated as not bona fide. 16. On careful examination of the factual situations in all the above cases, it is evident that the bonafide need projected therein, was for creating additional facilities for the beneficial enjoyment of other buildings of the landlord, situated in the vicinity. In this case, the factual situation is different. 16. On careful examination of the factual situations in all the above cases, it is evident that the bonafide need projected therein, was for creating additional facilities for the beneficial enjoyment of other buildings of the landlord, situated in the vicinity. In this case, the factual situation is different. It is the specific case of the landlord that the petition schedule building is situated in petition ‘A’ schedule property. The landlord wants to demolish all buildings therein, and to utilise the entire Petition A schedule property, for constructing a commercial shopping complex to ensure regular income for the landlord. It is discernible from Ext P15 Building permit and plan, which were got approved by the landlord that, the building proposed to be constructed by the landlord is having a total plinth area of 484.24 Square meters, consisting of 3 floors. It is not the case of the landlord that he intends to start any activity on his own, in the aforesaid building. On the other hand, it is discernible from the scrutiny of the entire facts and circumstances of the case that, the proposed building is intended to be let out to a different set of tenants. In our view, this is the crucial point of distinction. From the stipulations contained in Section 11(3), it is evident that, what is covered therein is bonafide need of the landlord for his own occupation or for the occupation of any member of his family depending on him. In this case, it is evident that the landlord wants to let out the proposed building to a new set of tenants. Therefore the crucial question that emerges from the peculiar facts and circumstances of the case is whether an order of eviction, can be allowed under Section 11(3) or not, in the above circumstances. That question gains importance, particularly in view of the fact that, in case, the order of eviction is allowed in such circumstances, the tenants will be deprived of the statutory protection under section 11(4)(iv) of the Act. 17. While considering the above question, necessarily the scheme of the Kerala Buildings (Lease and Rent Control) Act, 1965 is to be considered. From the reading of the enactment as a whole, it is evident that the process of eviction of the tenant is intended to be regulated and the same is permitted only through the modes and grounds contemplated under the Act. From the reading of the enactment as a whole, it is evident that the process of eviction of the tenant is intended to be regulated and the same is permitted only through the modes and grounds contemplated under the Act. Therefore it is the duty of the Court to ensure that, the landlord is establishing at least any one of the grounds mentioned in the Act, for securing an order of eviction. In that view of the matter, it is intended to protect the rights of the tenants and also that of the landlord, by keeping a balance in between, while considering the disputes arising from the tenancy. In this case the crucial question to be determined is whether which of the provision, namely Section 11(3) or Section 11(4)(iv) is attracted in the facts and circumstances of the case. Section 11 (4) (iv) reads as follows: “(4) A landlord may apply to the rent control Court for an order directing the tenant to put the landlord in possession of the building- (i)…….. (ii)………. Section 11 (4) (iv) reads as follows: “(4) A landlord may apply to the rent control Court for an order directing the tenant to put the landlord in possession of the building- (i)…….. (ii)………. (iii)………… (iv) if the building is in such a condition that it needs reconstruction and if the landlord requires bonafide to reconstruct the same and if he satisfies the Court that he has the plan and license, if any required, and the ability to rebuild and if the proposal is not made as a pretext for eviction: Provided that the landlord evicts a tenant and does not reconstruct completely the building within a time which may be fixed or extended by the Rent Control Court, shall on a petition before that Court be liable to a fine of rupees five hundred, if it is proved that he has wilfully neglected to reconstruct completely the building within such time: Provided further that the Court shall have power at any time to issue directions regarding the reconstruction of the building and on failure of compliance by the landlord, to give effect to the order in any manner the Court deem fit and in appropriate cases to put the tenant back in possession on award to the evicted tenant damages equal to the excess rent he has to pay for another building that he is occupying in consequence of such eviction: Provided further that the tenant who was evicted shall have the first option to have the reconstructed building allotted to him with liability to pay its fair rent: or” 18. Thus, from the above provision it is evident that, if the need projected is for reconstruction of the building, certain protection has been provided for the tenant, while ordering eviction. It is discernible that, going by the scheme of the Act, a tenant, who is compelled to vacate the tenanted premises for the purpose of reconstruction of the building, is entitled to get a space in the newly constructed building allotted to him, upon its reconstruction. This is a statutory protection contemplated under the Act and this cannot be allowed to be bypassed. It is true that, in certain cases the demolition and reconstruction of the building may fall upon the stipulations contained in Section 11(3) of the Act. This is a statutory protection contemplated under the Act and this cannot be allowed to be bypassed. It is true that, in certain cases the demolition and reconstruction of the building may fall upon the stipulations contained in Section 11(3) of the Act. However while considering the claim of eviction under Section 11(3) in such cases, it should be ensured that such an order is not amounting to denial of the statutory protection to the tenants as contemplated under Section 11 (4) (iv) and the order of eviction is strictly coming within the scope of the bonafide need under section 11(3). 19. Therefore, the crucial question that emerges is whether the need set up by the landlord in this case under section 11 (3) of the Act comes strictly within the scope of the said provision or is it intended to bypass Section 11 (4) (iv) by denying the protection available to the tenants as per the said provision. While considering the above issue, the fact that the landlord has not mentioned anything in his petition as to his need to possess the entire building or part thereof, for his own purpose or for the purpose of any of his dependents, becomes very much relevant. The relevant pleadings of the landlord in the Rent Control Petition is as follows: IN OTHER LANGUAGE 20. It is evident from the pleadings that, the landlord wants to utilise the entire Petition A schedule property, for constructing a commercial shopping complex, for ensuring income for the landlord. It is stated that, the space on which the present building is situated is intended to be utilised for open space and for car parking. However, it is evident that the proposed building is to be constructed in the very same property and space of the petition schedule buildings forms part of the plan of the said proposed building. In the aforesaid pleadings, it is not stated that any portion of the building is intended to be occupied by the landlord or by any of his dependents. Since the intention of the landlord itself was to construct a commercial shopping complex, in the absence of any specific pleadings as to it’s intended occupation by the landlord himself, the only conclusion possible is that the entire building is intended for letting out to the tenants. Since the intention of the landlord itself was to construct a commercial shopping complex, in the absence of any specific pleadings as to it’s intended occupation by the landlord himself, the only conclusion possible is that the entire building is intended for letting out to the tenants. In that circumstances, finding of the Appellate Authority that, the landlord should have brought the application under section 11(4)(iv) is legally sustainable. This is particularly because, in the facts of the circumstances as mentioned above, we do not see any justification in denying the protection available to the tenants under section 11(4) (iv), by ordering an eviction under Section 11(3). In other words, in the peculiar facts and circumstances, entertaining an application under Section 11 (3), would amount to bypassing of the statutory protection of the tenants under Section 11 (4) (iv). 21. In this case there is another aspect which is very much relevant in this regard. Even going by the pleadings of the landlord, it can be seen that the building described as Petition C schedule, is in the possession of the 2nd respondent on the basis of a mortgage deed. It is the specific case of the landlord that, the proposed building is to be constructed after demolishing the entire building including the Petition C schedule building as well. As the said building is occupied by the 2nd Respondent on the basis of a mortgage deed, he has already filed a civil suit numbered as OS 133/2016 and the same is now pending consideration before the Additional Munsiff Court-II, Kozhikode. Thus, even according to the landlord, the construction of the new building can be effected only after getting the vacant possession of the petition C schedule building as well, which is depending upon the final outcome of the above civil suit. Thus the bona fide need put forward by the landlord by itself is depending upon a contingency, namely, the final outcome of the civil suit mentioned above. Therefore in that circumstances, simply passing an order of eviction under Section 11 (3), will not serve justice to the parties. 22. Apart from the above, the undertaking given by the landlord before this Court by filing I.A 1/2021 in RCR 179/2018 is also very much relevant. Therefore in that circumstances, simply passing an order of eviction under Section 11 (3), will not serve justice to the parties. 22. Apart from the above, the undertaking given by the landlord before this Court by filing I.A 1/2021 in RCR 179/2018 is also very much relevant. As per the said undertaking, the landlord had agreed to allow the 6th Respondent in the Rent Control Petition to continue his possession of the building occupied by him, until the remaining buildings are demolished after getting a favourable decree in O.S. No.133/2016. It was also undertaken by him that, after completion of the new building, the 6th Respondent shall be allotted a room therein on payment of a fair rent. Therefore, it is evident that the landlord is intending to let out the newly constructed building to new tenants and is also prepared to accommodate one of the existing tenants, in the new proposed building. Therefore, in such circumstances we do not see any reason to deny the said benefit to the other tenants also. This is because, by allowing the landlord to pick and choose the tenants, in the matter of eviction, that too after filing Rent Control Petition against all of them, the very purpose of the Kerala Buildings (Lease and Rent Control) Act, would get defeated. 23. In the above circumstances, after taking into account all the materials available on record, we are of the view that, the need projected by the landlord cannot be treated as bona fide, so as to attract Section 11(3) of the Act. We have already found that, in the peculiar facts and circumstances of this case, issuing an order of eviction under Section 11(3) will result in denial of legitimate right to have protection under Section 11(4)(iv) of the Act. Therefore, the finding entered into by the Rent Control Appellate Authority to the effect that the landlord should have submitted the application under Section 11(4)(iv) instead of filing it under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, is hereby confirmed. In the above circumstances, these revision petitions are dismissed. However, it is made clear that, the dismissal of these revision petitions shall not preclude the landlord from initiating appropriate proceedings before the Rent Control Court, seeking eviction of the tenants under Section 11(4)(iv) of the Act.