Partly allowed

Sunny Padamadan Rafael @ Sunny Padamadan, v. Vijaya Shenoy

Kerala HC27 Nov 2018RCRev./375/2018

Case brief

AI extract

What is this about?

In a rent control revision regarding eviction under the Kerala Buildings (Lease & Rent Control Act), the High Court of Kerala distinguished between a lease and a licence. It held that a tenant cannot be evicted under Section 11(4)(iii) merely because they occupy a licensed property elsewhere, as possession is not transferred in a licence. The court confirmed the eviction under Section 11(3) findin

What did the court decide?

Eviction order under Section 11(4)(iii) set aside; eviction order under Section 11(3) confirmed. Tenant allowed 8 months with conditions to vacate.

Sunny Padamadan Rafael @ Sunny Padamadan, Vs Vijaya Shenoy — Landlord and Tenant | Kerala HC (2018)

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C.R.

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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 MRS. JUSTICE ANNIE JOHN

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TUESDAY, THE 27TH DAY OF NOVEMBER 2018 / 6TH AGRAHAYANA, 1940

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RCRev.No. 375 of 2018

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AGAINST THE ORDER OF THE RENT CONTROL APPELLATE AUTHORITY, ERNAKULAM IN RCA 19/2018 of DATED 06.10.2018

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AGAINST THE ORDER DATED 02.03.2018 OF THE RENT CONTROL COURT, ERNAKULAM IN RCP NO.136/2016

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REVISION PETITIONER/ APPELLANT/ RESPONDENT :

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SUNNY PADAMADAN RAFAEL @ SUNNY PADAMADAN, AGED 45 YEARS, SON OF RAFAEL, C.C.NO. THAT. 40/3327, RADHA KRISHNA BUILDING, CLOTH BAZAR ROAD, ERNAKULAM, KOCHI - 682031, HAVING PERMANENT ADDRESS AT 448(11/382), PADAMADAN HOUSE, BOSCO NAGAR, VELLANIKKARA UNIVERSITY ROAD, MADAKKATHARA PANCHAYAT, THRISSUR - 680 654.

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BY ADVS. SRI.R.D.SHENOY (SR.) SRI.D.NARENDRANATH SRI.M.HARISHARMA

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RESPONDENT/ RESPONDENT/ PETITIONER :

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VIJAYA SHENOY, AGED 63 YEARS, WIFE OF LATE A.K.SOMANATHA SHENOY, ARAKKAPARAMBIL HOUSE, T.D.ROAD NORTH END, ERNAKULAM, KOCHI - 682 035.

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BY ADV. SRI.S.B.PREMACHANDRA PRABU (CAVEATOR)

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THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 27.11.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING :

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RCRev.No. 375 of 2018

ORDER

K.Harilal, J.

The revision petitioner is the tenant, who is confronting with an order of eviction, passed concurrently under Sections 11(3) and 11(4)(iii) of the Kerala Buildings (Lease & Rent Control Act), 1965 [Hereinafter referred to as, 'the Act]. (The parties are referred to as in the Rent Control Petition).

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The petitioner filed RCP.No.136/2016 before the Rent Control Court, Ernakulam under Sections 11(3), 11(4)(i) and 11(4)(iii) of the Act. According to the petitioner, she bona fide needs the petition schedule building for starting a hardware shop. The petition schedule building is a portion of the ground floor of the building by name, Radhakrishna building, Cloth Bazar Road, Ernakulam. The entire ground floor having a total area of 1600 Sq.ft. belongs to the petitioner. She is in possession of the rest of the

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RCRev.No. 375 of 2018

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area on the ground floor having 1200 Sq.ft., which was earlier in the possession of a tenant, and now she got vacant possession of the said portion in June, 2016. According to her, she wants to start the aforesaid Hardware and Cement shop, using the entire ground floor. It is alleged that the portion of the building, which is in her possession, is having no road frontage. According to her, after getting vacant possession of the petition schedule building, she intends to remove the wall in between the petition schedule shop room and northern portion of the petition schedule building and to make necessary arrangements in the entire ground floor, so that she will get road frontage to the entire ground floor, and the same can be utilized for the proposed business. It is further averred that she has no other vacant and suitable buildings of her own in her possession to start the said proposed business. But, several other vacant buildings are available in the

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locality to shift the business of the respondent from the tenanted premises. Therefore, she is entitled to get an order of eviction, under Section 11(3) of the Act. Further, it was alleged that the respondent has, in his possession many other buildings in the same city, which is absolutely reasonable for his requirement. He has in his possession another building in Cloth Bazar, very near to the petition schedule building and the said building was taken out from one Mr.Rafek Sait. That apart, he has another building at Broadway, Ernakulam and the said building was taken out from the Wakf Board. In the aforesaid buildings, the respondent has been conducting a cloth business. Further, it was alleged that the respondent has sub-let the portion of the petition schedule building to different persons on daily rent basis, without her consent. Thus, she is entitled to get an order of eviction under Sections 11(4)(i) and 11(4)(iii) of the Act.

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RCRev.No. 375 of 2018

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The respondent filed objection contending

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that the need projected is not bona fide and it is a pretext for eviction only. He denied the allegation that he has in his possession many other buildings in the same city and those buildings are reasonably sufficient for his business purpose. According to him, he is depending mainly on the income derived from the business in the petition schedule building and no other buildings are available in the locality to shift his business from the tenanted premises. With the aforesaid averments, he prayed for dismissal of the Rent Control Petition.

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On the rival pleadings, both parties adduced evidence and after considering the evidence on record, the courts below concurrently found that the need projected in the petition is bona fide and the respondent is not entitled to get protection under the 2^nd proviso and further found that the respondent has

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in his possession another building, which is reasonably sufficient for his requirement in the same city and thereby granted an order of eviction under Sections 11(3) and 11(4)(iii) of the Act.

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Heard Shri.R.D.Shenoy, the learned Senior

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Counsel for the respondent/ tenant and

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Shri. Premachandra Prabhu, the learned counsel for the petitioner/ landlord.

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The learned Senior counsel mainly canvassed the point that the courts below went wrong by passing an order of eviction under Section 11(4)(iii) of the Act, on an erroneous understanding of the statutory mandate, under Section 11(4)(iii) of the Act. According to the learned Senior Counsel, for granting an order of eviction under Section 11(4)(iii), the tenant must have, in his possession, a building, which is reasonably sufficient for his requirement, in the same city. But, in the instant case, it has come out in

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evidence, by the production of Ext. A3, by the petitioner himself that the respondent is a licensee of the building under Ext.A3 licence deed. The learned Senior Counsel substantiated the difference between lease and licence as envisaged under Section 105 of the Transfer of Property Act and Section 52 of the Indian Easement Act. The learned Senior counsel highlighted the point that a licensee can never be in legal possession of the premises under licence, as the licence was granted to do a particular act only. Ext.A3 would show that the respondent was given licence to conduct ready-made and fancy items only, and the possession of the building was not transferred to the respondent, under Ext.A3. Therefore, the occupancy of the other shop room by the respondent would not fall under the first limb of Section 11(4)(iii) of the Act. But the courts below miserably failed to distinguish the lease and licence and considered both in the same legal

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perspective. Secondly, it is contended that the courts below have failed to appreciate the evidence on record under Section 11(3), in an objective manner, as contemplated in the decision of the Supreme Court in

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Shiv Sarup Gupta v. Mahesh Chand Gupta [1999(6) SCC 222] . The learned Senior counsel invited our attention to paragraphs 13 to 19 in the aforesaid decision and contended that the evidence on record would prove that the need projected in the petition was not natural, real, sincere or honest. Thus, the concurrent findings of the courts below, under Section 11(3) of the Act are perverse. No other point has been raised in this revision petition.

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Per contra, the learned counsel for the petitioner/ landlord advanced arguments to justify the concurrent findings of the courts below under Section 11(3) and 11(4)(iii) of the Act. According to the learned counsel for the petitioner, though the

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nomenclature of Ext.A3 is that of a licence, the contents of documents would show that it is not a licence but a lease only. If it is a lease, certainly the respondent would fall under Section 11(4)(iii) of the Act. As regards the findings under Section 11(3) of the Act, the learned counsel contends that the oral evidence given by the landlord himself as PW1 would prove that her desire is real, sincere and honest. According to the learned counsel, the landlord herself narrated the entire facts and circumstances, which prompted her to start a business at the age of 65 years and it has come out in evidence that her husband was conducting the very same business and she is one among, in the 3^rd generation of a business family.

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In view of the arguments at the bar, the first question is, Can a tenant, who is in occupation of a building as lessee be evicted from that building under Section 11(4)(iii) of the Act, on the ground that

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subsequently he occupied another building in the same city or town or village as a licensee.

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The question of law raised above centers around the difference between a lease and licence.

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According to the statutory mandate under Section 11(4)(iii) of the Act, if the tenant already has in his possession a building, or subsequently acquires possession of or put up a building that is reasonably sufficient for his requirements in the same city, town or village, he shall be evicted under Section 11(4)(iii) of the Act. It is pertinent to note that the word 'possession' is employed in both limbs of Section 11(4) (iii) of the Act. In other words, the tenant must be in legal possession of another building, before or after the commencement of tenancy, in respect of the building from which he is sought to be evicted. At this juncture, let us examine the nature of right transferred, by the licensor to the licensee under Section 52 of the Indian

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RCRev.No. 375 of 2018

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Easements Act, 1882 and lessor to the lessee under Section 105 of the Transfer of Property Act. Section 52 of the Indian Easements Act reads as follows :-

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52 "Licence" defined . -Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the granter, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence.

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Section 105 of the Transfer of Property

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Act reads thus :

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105. Lease defined. - “A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such term.”

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On an analysis of the aforesaid provision,

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we find that what is transferred by the licensor to the licensee is a right to do or continue to do a specific act

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in or upon the immovable property of the licensor. It follows that the possession of the building was not transferred under licence and the licensee is not allowed to do any act other than the act, for which he is permitted under the licence; whereas, in the case of lease, what is transferred under Section 105 of the Transfer of Property Act is the right to enjoy the immovable property. The lease envisages and transfers an interest in the demised property by creating a right in favour of the lessee in rem . Thus, the lessee of a building has the right to possess and enjoy the building; whereas a licensee of a building does not have such a right of possession and enjoyment of the building and he has a right to do or continue to do the specific business or trade only in the building for which permission has been granted by the licensor.

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In the above analysis, we find that since

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the licensee of a building, having a right to do or continue to do a specific business or trade only in that building, is not in possession and enjoyment of that licensed building, a tenant, who is in occupation of a building, as lessee, cannot be evicted from that building under Section 11(4)(iii) of the Act, on the ground that subsequently he occupied another building in the same city or town or village and started same or another business as licensee.

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The learned counsel for the respondent drew our attention to Ext.A3 Licence Deed and contended that though the nomenclature of Ext.A3 is that of a licence, the tone and tenure of the document is nothing other than that of a lease deed.

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We have meticulously gone through Ext.A3. Going by Ext.A3, we find that what was transferred under Ext.A3 is a right to do the business of ready-made and fancy items only in the premises.

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RCRev.No. 375 of 2018

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More importantly, it is specifically stipulated that the premises shall not be used for any other purpose. It is true that in paragraphs 5, 12, 13 and 14, the words 'lease' and 'rent' are also used. But, we are of the opinion that the nature of a document, as to whether it is a lease or licence, has to be determined on the basis of the answer to the question 'what right was actually transferred under the document'. If a right to do a specific act was transferred under the document, even if the words 'lease' or 'rent' are used, as nomenclature, or in some other part of the said document, it is of no consequence at all and the deed must be treated as a licence deed.

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In the above view, we find that Ext.A3 is a Licence Deed, which will not fall under Section 11(4) (iii) of the Act. Hence, we set aside the order of eviction, passed under Section 11(4)(iii) of the Act.

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Let us consider the challenge against the

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RCRev.No. 375 of 2018

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order of eviction passed under section 11(3) of the Act. The findings on bona fides of the need is a factual finding and the courts below concurrently found that the need is ' bona fide'. The scope and extent of interference with the factual findings, under revisional jurisdiction, is very limited and the revisional court cannot re-appreciate the entire evidence again, so as to arrive at a different finding, unless the findings of the courts below are perverse or vitiated by nonconsideration of material evidence or mis-reading of evidence. So, the only question to be considered on ' bona fide' need is, is the finding that the need is bona fide perverse?

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Learned counsel highlighted the points that the petitioner/landlady is a widow aged 63 years, her children are well settled, she is having good income by way of rent and she has no previous experience in conducting the business. So, according to the learned

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senior counsel, she can never be expected to start a new business, a hardware shop.

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It is true that the petitioner/ landlady is a widow aged 63 years at the time of filing of the rent control petition. As rightly observed by the courts below, old age or affluency cannot be taken as a ground to doubt the bona fide need to start a new business, particularly when the respondent has no case that the petitioner is physically weak or disabled. "Where there is a will, there is a way". Therefore, the

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need can be bona fide, irrespective of the old age or affluency.

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In order to prove the bona fides of the need, the landlady herself was examined in evidence and thereby she offered herself for cross-examination. After evaluating the evidence of the landlady, the courts below concurrently found that though she was cross-examined at length, nothing has been brought

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out in evidence to discredit her firm desire for starting a hardware shop. When she was cross-examined, as

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to how will she conduct the business, she deposed that she will appoint an efficient and qualified manager to manage the affairs of the business.

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The Supreme Court in Jay Laxmi Salt Works (P) Ltd. v. State of Gujarat [1994 (4) SCC 1] held that previous experience is not required to prove the bona fide need to start a new business. Similarly, in Shamsudheen v. Balan Nair [2014 (2) KLT 978] this court held that even if the landlord is a man of wealth and assets or that he is affluent, his claim for eviction on bona fide need, cannot be rejected on that ground. Further in Adbul Rub v. Jobby Tharian

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[2003 (2) KLJ 1035] and Kurian v. Sunny John [2016 (2) KLT SN 124] this court held that law does not think or insist that landlord having other sources of income shall not carry out other income earning business or

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venture to start a new business. Moreover, it has come out in evidence that she is one among the third generation of family having hardware business. In the above view, we do not find any reason to doubt the bona fides of the need and the findings are not perverse.

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Coming to the first proviso, admittedly, the petitioner has vacant possession of an area having 1200 sq.ft. of the same building, adjacent to the petition schedule building and she has got vacant possession of that portion in 2016. But, the specific case of the petitioner is that she wants the entire ground floor of the building for starting the proposed hardware business and she is keeping that vacant portion as such, awaiting the vacant possession of the tenanted premises in the instant case. Moreover, Ext.C1 commission report shows that vacant portion has no road frontage. But the petitioner deposed that

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she intends to use the entire ground floor after removing the wall between the petition schedule building and other portion having no road frontage. Thus the petitioner has given special reason to the satisfaction of the courts below for not using the other vacant portion alone of the same building for the proposed need.

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Coming to the 2^nd proviso, both limbs of the 2^nd proviso are conjunctive and the burden of proof is on the respondent/tenant. But, no positive evidence has been adduced to prove that he is mainly depending upon the income from the tenanted premises, particularly when he himself admitted that he is a partner of some other business firm and he has been conducting another business as a licensee. Similarly, no evidence has been adduced to prove the nonavailability of the vacant building in the locality, by the respondent. Thus, the courts below are justified in

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finding that the respondent is not entitled to get protection under the 2^nd proviso. We do not find any illegality or perversity in the finding that the need is bona fide and the respondent is not entitled to get protection under the 2^nd proviso to section 11(3) of the Act. The order of eviction passed under Section 11(3) of the Act is confirmed.

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At last, the learned counsel for the revision petitioner sought for 9 months' time to vacate the tenanted premises. The learned counsel for the respondent submits that a reasonable time can be granted for the same.

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Having regard to the facts and circumstances of the case, the revision petitioner is given 8 months'

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time to vacate the tenanted premises on the following conditions :-

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The revision petitioner/ tenant shall pay the entire arrears of rent, if any, within a period of one month from the date of receipt of

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a copy of this order.

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The revision petitioner/ tenant shall file an affidavit expressing an undertaking that he is ready and willing to vacate the tenanted premises within a period of eight months' from the date of receipt of a copy of this order.

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The affidavit shall be filed before the executing court within a period of two weeks from the date of receipt of the copy of this order.

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in the case of failure, the time granted to vacate the premises will stand automatically cancelled and the petitioner/ landlord is entitled to enforce the order of eviction.

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The rent control revision is allowed in part.

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Sd/-

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K.HARILAL JUDGE

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Sd/- ANNIE JOHN JUDGE

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RKM

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The condition No.2 occurring in page No.21 of the final order dated 27.11.2018 in RCR No.375/2018 is corrected

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RCRev.No. 375 of 2018

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and substituted by “The revision petitioner/ tenant shall file an affidavit expressing an undertaking that he is ready and willing to vacate the tenanted premises within eight months from 27.11.2018” , as per order dated

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01.04.2019 in I.A.No.1/2019 in R.C.R.No.375/2018.

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Sd/- Deputy Registrar

Sunny Padamadan Rafael @ Sunny Padamadan, v. Vijaya Shenoy

Case brief

What is this about?

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Sunny Padamadan Rafael @ Sunny Padamadan, v. Vijaya Shenoy

Case brief

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