Dismissed

Habeebkhan v. Ali Akbar

Kerala HC16 Jul 2019RCRev./294/2018

Case brief

AI extract

What is this about?

High Court of Kerala dismissed revision petitions by tenants challenging an eviction order under Section 11(3) of the Kerala Building (Lease and Rent Control) Act, 1965. The Court upheld the landlord's bona fide need claim but allowed tenants temporary possession pending vacating.

What did the court decide?

Revision petitions dismissed. Tenants allowed temporary possession for four months subject to undertaking to vacate and payment of rent.

Habeebkhan Vs Ali Akbar — Landlord and Tenant | Kerala HC (2019)

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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 A.HARIPRASAD

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THE HONOURABLE MRS. JUSTICE SHIRCY V.

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TUESDAY, THE 16TH DAY OF JULY 2019 / 25TH ASHADHA, 1941

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RCRev..No.207 of 2019

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AGAINST THE JUDGMENT IN RCA 63/2012 of 1ST ADDL. RENT CONTROL APPELLATE AUTHORITY, THRISSUR DATED 21-12-2017

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AGAINST THE ORDER IN RCP 117/2001 of RENT CONTROL COURT,THRISSUR DATED 31-07-2012

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REVISION PETITIONER/APPELLANT/3RD RESPONDENT:

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ARAVINDAKSHA MENON, AGED 76 YEARS S/O. KORAPPATH GANGADHARANMENON, KURUPPAM ROAD JUNCTION, THRISSUR, PIN 680 001

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BY ADV. SRI.C.A.ANOOP

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RESPONDENT/RESPONDENTS/PETITIONER & 2ND RESPONDENT:

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1 ALI AKBAR, AGED 40 YEARS

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S/O. ABOOBAKER, VAISYAM VEEDU, EDAKAZHIYUR VILLAGE AND DESOM CHAVAKKAD,THRISSUR 680 515.

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2 HABEEBKHAN,

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AGED 62 YEARS S/O. SANAVULLAKHAN, ASMATHULLAKHAN FABRICS, KURUPPAM ROAD, THRISSUR NOW RESIDING AT APSARA GARDEN, NELLIKKUNNU VILLAGE, THRISSUR TALUK, PIN 680 005.

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BY ADVS. SRI.K.A.MANZOOR ALI SMT.R.KRISHNA

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THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 16.07.2019, ALONG WITH RCRev..294/2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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RCR.294/2018 & 207/2019

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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 A.HARIPRASAD

¶25

¶26

THE HONOURABLE MRS. JUSTICE SHIRCY V.

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TUESDAY, THE 16TH DAY OF JULY 2019 / 25TH ASHADHA, 1941

¶28

RCRev..No.294 of 2018

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AGAINST THE JUDGMENT IN RCA 60/2012 of 1ST ADDL. RENT CONTROL APPELLATE AUTHORITY, THRISSUR DATED 21-12-2017

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AGAINST THE ORDER IN RCP 117/2001 of RENT CONTROL COURT,THRISSUR DATED 31-07-2012

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REVISION PETITIONER/APPELLANT/2ND RESPONDENT:

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HABEEBKHAN

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AGED 62 YEARS S/O SANAVULLAKHAN, ASMATHULLAKHAN FABRICS, KURUPPAM ROAD, THRISSUR, NOW RESIDING AT APSARA GARDEN, NELLIKUNNU VILLAGE, THRISSUR TALUK, PIN-680005

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BY ADV. SRI.C.A.ANOOP

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RESPONDENT/RESPONDENTS/PETITIONER & 3RD RESPONDENT:

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1 ALI AKBAR, AGED 40 YEARS, S/O ABOOBAKER, VASIYAM VEEDU, EDAKAZHIYUR VILLAGE AND DESOM, CHAVAKKAD, THRISSUR 680 515

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2 ARAVINDAKSHA MENON, AGED 76 YEARS, S/O KORAPPATH GANGADHARAMENON, KURUPPAM ROAD JUNCTION, THRISSUR, PIN-680 001.

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BY ADV. SRI.K.A.MANZOOR ALI

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RCR.294/2018 & 207/2019

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THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 16.07.2019, ALONG WITH RCRev..207/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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RCR.294/2018 & 207/2019

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ORDER

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[ RCRev. 207/2019 ,RCRev..294/2018 ]

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A. Hariprasad, J.

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These revision petitions are filed by the 2^nd and 3^rd respondents in R.C.P. No. 117 of 2001 before the Rent Control

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Court, Thrissur. The first respondent herein filed the petition

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seeking eviction of the revision petitioners urging grounds under Sections 11(2) (b) and 11(3) of the Kerala Building (Lease

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and Rent Control) Act, 1965 (in short 'the Act').

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It is the case of the petitioner in the eviction

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petition that he purchased the petition schedule rooms as per

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Ext.A2. He would contend that respondents 1 and 3 claimed

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tenancy right in respect of the two rooms in the building and the

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RCR.294/2018 & 207/2019

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2^nd respondent was impleaded only in the capacity that he is the

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son of the 1^st respondent. Later, the 1^st respondent died and

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the 2^nd respondent is now continuing the business. According to the petitioner, he was permanently residing along with his parents abroad. He is intending to come back to India and start a business in Home Appliances in the petition schedule room for his livelihood. He would contend that his need is bona fide and genuine. It is further averred in the eviction petition that the petitioner intended to use the ground floor as a show room and the first floor as a godown. According to the petitioner, no other room is in his possession to start the proposed business and

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that he is entitled to get an order of eviction under Section 11(3)

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of the Act.

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RCR.294/2018 & 207/2019

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The 2^nd respondent in the eviction petition filed a

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counter statement disputing the factual allegations in the

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petition. According to him, the eviction petition is without bona

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fides and it is only a ruse to evict the tenants.

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The 2^nd respondent in the eviction petition (revision

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petitioner in R.C.R. No. 294 of 2018) filed a counter statement

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denying the allegations in the eviction petition. He contended

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that the eviction petition is bereft of bona fides and it is filed

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only to unjustly evict the tenants.

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The 3^rd respondent in the eviction petition

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(petitioner in R.C.R. No. 207 of 2019) also opposed the

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application. He contended that original tenant was deceased

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Korappath Gangadhara Menon and he was having a permanent

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lease in respect of the building. Under the lease arrangement,

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RCR.294/2018 & 207/2019

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Korappath Gangadhara Menon was permitted to make additions

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to the building without taking permission from the landlord. He

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had made improvements to the building. He constructed a staircase to the building. When there was a land acquisition proceeding for widening the road, compensation was paid to

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him. Therefore, his is not liable to be evicted from the premises.

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He also contended that the bona fide need set up is false.

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Pending proceedings, the revision petitioner in

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R.C.R. No.207 of 2019 filed an application before the Rent

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Control Court requesting the court to refer the matter to the

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land Tribunal concerned to find out whether he was entitled to

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get protection of Section 106 of the Kerala Land Reforms Act,

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1963, (in short 'the KLR Act'). The Rent Control Court allowed

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his application, against which an appeal was taken before the

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RCR.294/2018 & 207/2019

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Rent Control Appellate Authority, Thrissur as R.C.A. No. 79 of 2006. The Rent Control Appellate Authority allowed the appeal

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and called back the records sent to the Land Tribunal and directed the Rent Control Court to consider the matter afresh. The revision petitioner in R.C.R. No. 207 of 2019 challenged the

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judgment in R.C.A. No. 79 of 2006 before this Court in R.C.R. No. 110 of 2011. This Court, as per order dated 8.3.2011, considered the issues and relying on the decision in Govinda

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Panicker v. Sreedhara Warrier (2202 (2) KLT 43) found that the question of commercial or industrial lease mentioned in Section 106 of the KLR Act does not require a reference to the Land Tribunal under Section 125(3) of the KLR Act. To that extent,

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the Division Bench agreed with the appellate authority. However, the Rent Control Court was directed to consider the plea of

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RCR.294/2018 & 207/2019

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commercial lease, raised by the 3^rd respondent in the eviction

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petition, with reference to the statutory provision in Section 106 of the KLR Act.

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The Rent Control Court after allowing the parties to

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adduce evidence – both oral and documentary – entered a

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finding that the eviction petitioner/respondent is not entitled to

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get an order of eviction under Section 11(2) (b) of the Act.

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However, the plea under Section 11 (3) of the Act was allowed in

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favour of the landlord finding that he established a bona fide

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need and also that the tenants failed to prove that they are entitled to the protection under the 2^nd proviso to Section 11(3)

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of the Act. The Rent Control Court also considered elaborately

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the question relating to commercial lease under Section 106 of

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the KLR Act and entered a finding that the 3^rd respondent in the

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RCR.294/2018 & 207/2019

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eviction proceedings is not entitled to get any benefit under the

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above provision.

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Aggrieved by the order of eviction, the tenants

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approached the Rent Control Appellate Authority, Thrissur with

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two appeals namely RCA Nos. 60 and 63 of 2012. After

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reconsidering the entire issues and appreciating the evidence once again, the appellate authority agreed with the Rent Control

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Court and confirmed the order of eviction. Hence, these revisions at the instance of the tenants.

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Heard the learned counsel for the revision

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petitioners and the learned counsel for the respondent/landlord.

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The ground urged by the respondent/landlord

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under Section 11(2)(b) of the Act does not survive for consideration as it has been concurrently found by the

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RCR.294/2018 & 207/2019

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authorities below that there is no arrears of rent kept by the

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tenants to attract an order of eviction under Section 11(2)(b) of

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the Act.

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We are mainly concerned with the legality,

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regularity and propriety of an order of eviction passed under

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Section 11 (3) of the Act. However, disallowance of the claim of

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non-evictability of the 3^rd respondent is also to be decided.

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Learned counsel for the revision petitioners

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contended that the 3^rd respondent in the eviction petition is

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entitled to get protection under Section 106 of the KLR Act. The

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said provision reads as follows:

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“ 106. Special provisions relating to leases for commercial or industrial purposes .- (1) Notwithstanding anything contained in this Act, or in any other law, or in any contract, or in any other law, or in any contract, or in any order or decree of Court, where on any lad leased for

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RCR.294/2018 & 207/2019

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commercial or industrial purpose, the lessee has constructed buildings for such

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commercial or industrial purpose before the 20^th May, 1967, he shall not be liable to be evicted from such land, but shall be liable to pay rent under the contract of tenancy, and such rent shall be liable to be varied every twelve years.

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Explanation.- For the purposes of this section, -

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(a) “lessee” includes a legal representative or an assignee of the lessee; and

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(b) “building” means a permanent or a temporary building and includes a shed.

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(IA) The lessor or the lessee may apply to such authority as may be prescribed for varying the rent referred to in sub-section (1), and thereupon such authority may, after taking into consideration such matters as may be prescribed and after giving the lessor and the lessee an opportunity of being heard, pass such orders on the application as it deems fit.

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(2) If, between the 18^th December, 1957 and the date of commencement of this Act, any decree or order of Court

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RCR.294/2018 & 207/2019

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has been executed and any person dispossessed by delivery, such person shall, on application before the Land Tribunal, be entitled to restoration of possession:

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Provided that, before restoration, such person shall be liable to pay-

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(i) the compensation paid by the landlord for any improvements in the land and, subsisting at the time of restoration;

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(ii) the compensation for any improvements effected subsequent to the delivery:

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Provided further that he shall not be entitled to restoration if the property has passed on to the possession of a bona fide transferee for value.

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(3) Nothing contained in sub-section (1), sub-section (1A) and sub-section (2) shall apply to lands owned or held by the Government of Kerala or a local authority.

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Explanation.- For the purposes of this sub-section,

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“local authority” includes the Cochin Port Trust and any University established by an Act of the Kerala State Legislature.”

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RCR.294/2018 & 207/2019

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On a plain reading of Section 106 (1) of the KLR Act, it will be

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clear that in order to secure a right to continue without being

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evicted can be claimed only if the following conditions are established:

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(i) The subject matter of the lease must be a land.

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(ii) The lease must be for a commercial or industrial purpose.

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(iii) The lessee must have constructed building for such

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commercial or industrial purpose.

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(iv) The construction must have been before 20^th May, 1967.

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If all these ingredients are satisfied, then a lessee shall not be

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liable to be evicted from such land, but he shall be liable to pay

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rent under the contract of tenancy and such rent shall be liable

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to be varied every 12 years. On going through the counter

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statement filed by the respondents before the Rent Control

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Court, we find that none of the ingredients has been specifically

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RCR.294/2018 & 207/2019

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pleaded by him to get the benefit under Section 106 of the KLR

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Act. Even if the 3^rd respondent's case, that his predecessor constructed a staircase to an existing building is accepted, we find no reason to treat him as a commercial lessee eligible to be protected under Section 106 of the KLR Act. He has no case that his predecessor-in-interest obtained a vacant land and constructed a commercial building before 20^th May, 1967. For this single reason, the claim of benefit under Section 106 of the KLR Act cannot be maintained. Further, when was the staircase constructed is also not correctly pleaded and proved. All these aspects have been seriously considered by the Rent Control Court and entered a clear finding that the 3^rd respondent in the eviction petition cannot be regarded as a commercial lessee. We find no force in this submission since after a full fledged trial,

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RCR.294/2018 & 207/2019

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the Rent Control Court has entered a finding for valid reasons

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that the 3^rd respondent is not a person eligible to claim benefit

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under Section 106 of the KLR Act. There is no legal infirmity in

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the approach by the authorities below.

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In respect of the plea of bona fide need set up by

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the landlord, the authorities below have correctly analysed the

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scope of evidence and entered a clear finding that the landlord

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has established the bona fide need. We find no reason to

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interfere with the factual findings properly made by the

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authorities below, that too in a revision of this nature.

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The authorities below also entered a definite

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finding that the tenants are not entitled to claim protection of

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the 2^nd proviso to Section 11(3) of the Act. This is a finding

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based on evidence available on record.

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RCR.294/2018 & 207/2019

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Having regard to the factual and legal issues

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involved in these cases, we find that the authorities below have

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acted well within their jurisdiction, conferred on them by the Statute, and entered a correct finding. Hence, the revision petitions are found to be without any merit. Both the revision

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petitions are dismissed.

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However, considering the plea that the tenants are conducting business from 1970 onwards and also the plea of the

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landlord that the eviction petition was filed in 2001, we find that

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the tenants shall be allowed to continue for a period of four

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months on fulfilling the following conditions:

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