Partly allowed

George Daniel v. C.K Ninan

Kerala HC1 Aug 2017RCRev./138/2015

Case brief

AI extract

What is this about?

The Court set aside eviction orders under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, due to doubts regarding the landlord's bona fides and the application of the first proviso. Matter remanded to ascertain pleadings and need. Order under Section 11(2)(b) confirmed.

What did the court decide?

Order under Section 11(3) set aside; matter remanded to Rent Control Court. Order under Section 11(2)(b) confirmed.

George Daniel Vs C.K Ninan — Landlord and Tenant | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.HARILAL &

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THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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TUESDAY, THE 1ST DAY OF AUGUST 2017/10TH SRAVANA, 1939

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RCRev..No. 138 of 2015 (A)

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-----------------------------------AGAINST THE ORDER IN RCA 13/2014 of ADDL. RENT CONTROL APPELLATE AUTHORITY - IV, KOLLAM DATED 16-03-2015

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AGAINST THE ORDER IN BRC OP 1/2011 of RENT CONTROL COURT, PUNALUR DATED 28-02-2014

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REVISION PETITIONER/APPELLANT/RESPONDENT: -

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---------------------------------------------------------------------------GEORGE DANIEL, AGED 45 YEARS, CONDUCTING ALLEN CAR STYLE, CHEMMANTHOOR, PUNALUR VILLAGE, KOLLAM DISTRICT, FROM CHARUVILA PUTHEN VEEDU, PUNALUR VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT.

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BY ADVS.SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.MANU V. SRI.GOVIND PADMANAABHAN SRI.AJIT G.ANJARLEKAR

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RESPONDENT/COUNTER PETITIONER/PETITIONER: -

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C.K NINAN, S/O.C.O.KURIYAN, RESIDING AT CHARUVELI HOUSE, PUNALUR VILLAGE, PATHANAPURAM TALUK.689695 REPRESENTED BY ITS POWER OF ATTORNEY HOLDER, C.K.SOLOMON, S/O.KURIYAN - DO - DO.

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R1 BY ADV. SMT.V.RENJU R1 BY ADV. SRI.K.JAGADEESH

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THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 01-08-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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DMR/-

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K. HARILAL & P. SOMARAJAN, JJ. -----------------------------------------------R.C.R. No.138 of 2015

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Dated this the 01^st day of August, 2017

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O R D E R

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P.Somarajan, J.

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The tenant in revision came up before this Court aggrieved by the order passed under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act'), concurrently by both the Rent Control Court and Rent Control Appellate Authority in R.C.O.P.No.1/2011 and R.C.A.No.13/2014.

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The orders passed by both the Rent control Court and the Rent Control Appellate Authority are assailed by the tenant mainly on the reason that both the courts did not exercise their jurisdiction in its correct perspective, at least in the matter of appreciation of first proviso to Section 11(3) of the Act and the admission made by the landlord, while in the box, had been overlooked by both the lower courts.

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The need advanced by the landlord is for the purpose of starting a garment business for himself. The petition schedule shop rooms are the two shop rooms situated at the western corner of a shopping mall. It is having two shutters,

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R.C.R. No.138 of 2015

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out of 6 shutters shop rooms in a row in the ground level of the shopping mall. It is submitted by the landlord that the remaining four shutter shop rooms in the ground floor situated in a row are in his possession right from the year 2010. He had also admitted that the remaining portion of the entire building is also in his possession. The area covered by the first floor is admitted to be having 1300 sq.ft. and a cellar portion is also admitted by the landlord having 900 sq.ft. He had also admitted that he is possessing an extent of 2100 sq.ft. area in the said building and the same is lying vacant besides the 900 sq.ft. area of the cellar portion. The present Rent Control Petition was initiated in the year 2011. If that be so, as on the date of initiation of proceedings in the year 2011 he was having a total vacant area of 2100 sq.ft. besides another vacant area of cellar room having an extent of 900 sq.ft. It was submitted by the learned counsel for the revision petitioner that the Rent Control Court has not made any meaningful discussion with respect to the application of first proviso to Section 11(3) of the Act. It was also submitted that the Rent Control Appellate Authority had also went wrong in appreciating the possession of a large extent of 2100 sq.ft with

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R.C.R. No.138 of 2015

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the landlord and rejection of the said area by observing that the said area was obtained by the landlord for the purpose of running garment business, by evicting the respective tenants in occupation. It was stated in page No.12 of the impugned judgment that during the course of examination of the respondent, he had admitted that the above said vacant possession was obtained by him by evicting all the tenants for the purpose of running garment business. This would show that at that time, i.e in the year 2010, no application was filed for evicting the present tenant. Further, it goes to show that the landlord had obtained the said area having 2100 sq.ft. by projecting the need for conducting garment business and the tenants were evicted under that guise. If that be so, we are really in darkness, why the landlord has not commenced the proposed business of garment in the area having an extent of 2100 sq.ft. besides a cellar portion of 900 sq.ft. This would prima facie cause much doubt on the need advanced by the landlord. The learned counsel appearing for the landlord submitted that some delay has occurred in initiating proceedings against the present tenant because of the reason

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that the agreed rental period had elapsed only in the year

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R.C.R. No.138 of 2015

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So, the eviction proceeding was initiated after the expiry of the tenanted period, in the year 2011. We cannot accept the said version because of the reason that, even according to them, the agreed period of the rental arrangement expired in the year 2009. But, the present application was filed after the lapse of more than one year, in the year 2011 only. This would also go against the bona fides of the landlord in the present case. We are also in darkness with respect to the actual need projected by the landlord in the earlier proceedings and whether any pleadings were raised for the proposed business inclusive of the area covered by the present tenancy. The issue pertaining to the application of first proviso can be resolved only after ascertaining the pleadings raised in the earlier proceedings against the tenants with respect to the portion of building now in the hands of the landlord. So it is material to consider whether the need projected in the earlier petitions (Rent control proceedings) confined only to the buildings or portion of the building covered by those tenancies. For that purpose, we are of the view that, an opportunity can be given to both the parties and we do so by setting aside the order of eviction passed under Section 11(3) of the Act and

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R.C.R. No.138 of 2015

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remanding the matter back to the Rent Control Court, so as to ascertain the application of first proviso to Section 11(3) of the Act, in the light of the discussions made above. For that purpose, both the parties are at liberty to adduce additional evidence, if so requires. It is made clear that the remand of the matter is only for the purpose of ascertaining the application of first proviso to Section 11(3) of the Act and also to test the bona fide to the extent of first proviso to Section 11 (3) of the Act.

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In so far as the ground under Section 11(2)(b) is concerned, the learned counsel for the tenant has fairly conceded that he had no objection in confirming the said order and there is nothing to interfere with the said order by this revisonal court. But, it is submitted that the said order should be subject to the application of Section 11(2)(c) of the Act. Hence, we confirm the order passed under Section 11(2)(b) of the Act, subject to the application of Section 11(2)(c) of the Act.

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In the result, the revision is allowed in part. The order passed by both the Rent Control Court and the Rent Control Appellate Authority under Section 11(2)(b) is hereby

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R.C.R. No.138 of 2015

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confirmed. The order passed under Section 11(3) of the Act is hereby set aside and the matter is remanded back to the Rent Control Court for the purpose of consideration of application of first proviso to Section 11(3) of the Act, in the light of the discussions made above and in accordance with the law in force. Both parties shall appear before the Rent Control Court on 07.09.2017. No order as to costs.

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K. HARILAL (JUDGE)

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P. SOMARAJAN (JUDGE)

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DMR/-

George Daniel v. C.K Ninan

Case brief

What is this about?

What did the court decide?

George Daniel v. C.K Ninan

Case brief

What is this about?

What did the court decide?

What the court decided

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