Dismissed

Union of India, v. M.Shaik Muhammed

Kerala HC12 Dec 2022RCRev./186/2022

Case brief

AI extract

What is this about?

Tenants filed revisions challenging eviction and enhanced rent against landlords. The High Court upheld the lower courts' findings on bona fides and rent fixation but set aside interest on enhanced rent. Tenants granted time to vacate with conditions.

What did the court decide?

Revised judgment sets aside interest on enhanced rent; tenants granted time until 30.09.2023 to surrender possession subject to conditions.

Union of India, Vs M.Shaik Muhammed — Writ and Judicial Review | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

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THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN MONDAY, THE 12^TH DAY OF DECEMBER 2022 / 21ST AGRAHAYANA, 1944

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RCREV. NO. 186 OF 2022

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[AGAINST THE JUDGMENT DTD.12.4.2019 IN RCA 52/2016 OF ADDITIONAL DISTRICT COURT - III, MANJERI & ORDER DTD.11.7.2016 IN R.C.P.NO.8/2015 OF MUNSIFF COURT, MANJERI]

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REVISION PETITIONERS/APPELLANT/RESPONDENT:

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1 UNION OF INDIA, REP. BY THE CHIEF POSTMASTER GENERAL, OFFICE OF THE CHIEF POSTMASTER GENERAL OFFICE, TRIVANDRUM695033.

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2 THE POST MASTER GENERAL, NORTHERN REGION,CALICUT-673011.

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3 THE SUPERINTENDENT OF POST OFFICES, MANJERI DIVISION, MANJERI-676 121. BY ADV SRI.KRISHNADAS P.NAIR, SR.CGC

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RESPONDENTS/RESPONDENTS/PETITIONERS:

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1 M.SHAIK MUHAMMED, AGED 34 YEARS S/O LATE M.KUNIMOHAMMED, MUTTANGADAN HOUSE, UP HILL, MALAPPURAM DT.-676 505

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2 M. MUHAMMED ALI, 33 YRS, S/O LATE M.KUNIMOHAMMED, MUTTANGADAN HOUSE, UP HILL, MALAPPURAM DT.-676 505

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3 M. UMMAR ALI , 32 YRS., S/O LATE M.KUNIMOHAMMED, MUTTANGADAN HOUSE, UP HILL, MALAPPURAM DT.-676 505

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4 M. HAJARUMMA, 31 YRS., D/O LATE M. KUNIMOHAMMED, MUTTANGADAN HOUSE, UP HILL, MALAPPURAM DT.-676 505

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THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 12.12.2022,ALONG WITH RCR NO.187 OF 2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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R.C.Rev.Nos.186 & 187 of 2022

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE &

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THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN MONDAY, THE 12^TH DAY OF DECEMBER 2022 / 21ST AGRAHAYANA, 1944 RCREV. NO. 187 OF 2022

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[AGAINST THE JUDGMENT DTD.12.4.2019 IN RCA 51/2016 OF ADDITIONAL DISTRICT COURT - III, MANJERI & ORDER DTD.24.6.2016 IN R.C.P.NO.7/2015 OF MUNSIFF COURT, MANJERI]

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REVISION PETITIONERS/APPELLANTS/RESPONDENT:

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1 THE SUPERINTENDENT OF POST OFFICES MANJERI DIVISION, MANJERI-676121.

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2 THE SUB POSTMASTER, DOWN HILL, MALAPPURAM-676519.

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3 THE POST MASTER GENERAL, NORTHERN REGION, KOZHIKODE, PIN-673011.

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4 UNION OF INDIA, REPRESENTED BY SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF COMMUNICATION & IT DEPARTMENT OF POST, DAK BHAVAN, SANSAD MARG, NEW DELHI-110001.

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BY ADV KRISHNADAS P. NAIR

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RESPONDENTS/RESPONDENTS/PETITIONERS:

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1 M.SHAIK MUHAMMED

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S/O LATE K.KUNIMOHAMMED, MUTTANGADAN HOUSE, UP HILL, MALAPPURAM DISTRICT.

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2 M.MUHAMMED ALI,

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AGED 33 YEARS

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S/O LATE K.KUNIMOHAMMED, MUTTANGADAN HOUSE, UP HILL, MALAPPURAM DISTRICT.

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3 M.UMMAR ALI, AGED 32 YEARS

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R.C.Rev.Nos.186 & 187 of 2022

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S/O LATE K.KUNIMOHAMMED, MUTTANGADAN HOUSE, UP HILL, MALAPPURAM DISTRICT.

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4 M.HAJARUMMA, AGED 31 YEARS D/O LATE K.KUNIMOHAMMED, MUTTANGADAN HOUSE, UP HILL, MALAPPURAM DISTRICT. BY ADVS.SHEEBA MARIAM. J. & ARUNDHATHY K. ALIAS, SR.CGC THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 12.12.2022, ALONG WITH RCR 186 OF 2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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R.C.Rev.Nos.186 & 187 of 2022

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O R D E R

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Shoba Annamma Eapen J.

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The tenants are the revision petitioners. They filed these revision petitions under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, “the Act”), challenging the judgments dated 12.04.2019 of the Rent Control Appellate Authority (Additional District Judge-III), Manjeri in R.C.A.Nos.51 and 52 of 2016. As per the said judgments, the Appellate Authority confirmed the orders of eviction and fixation of fair rent granted by the Rent Control (Munsiff) Court, Manjeri dated 24.6.2016 and 11.7.2016 in R.C.P.Nos.7 and 8 of 2015 respectively, in favour of the respondents-landlords under Section 5(1) and 11(3) of the Act. 2. Two separate rent control petitions were filed by the respondents/landlords under Section 5(1) for fixation of fair rent and under Section 11(3) of the Act for eviction contending as follows:-

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The first respondent-landlord is jobless and he wants to start a business. The second respondent- landlord, who is working

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R.C.Rev.Nos.186 & 187 of 2022

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abroad also intends to start a business considering the bad employment condition abroad. The third respondent-landlord has no regular income and wants to start a business and fourth respondent, a house wife wants to start a business to enhance her family income. Hence, the respondents want to start a wholesale business dealing with fancy items. The revision petitionerstenants are paying Rs.6000/- as rent for 1441 Sq.ft. building in an area which has high commercial importance. Considering the long delay in obtaining possession of the tenanted premises, petition under Section 5(1) of the Act, was also filed by the respondents-landlords. It was contended that no other room or building is available with the respondents-landlords in Malappuram Municipality for starting the said business. But the revision petitioners-tenants are in possession of a large extent of land at Kottapadi where they can put up a building.

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The revision petitioners-tenants contended that a portion of the Malappuram Head Post office is functioning in the tenanted premises. The rent fixed was Rs.6000/- for an area of 1441 Sq.ft. with effect from 01.09.2005. The revision petitioners took action to find an alternate accommodation but no suitable

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R.C.Rev.Nos.186 & 187 of 2022

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building could be found out. The rent assessment committee recommended for a revised rent of Rs.16,500/- for the first floor and Rs.9500/- for the second floor, for a period of five years from 01.09.2010. But the landlords expressed their unwillingness to renew the lease agreement. It is contended that the need put forward by the landlords are untenable. It is admitted by the tenants that they own 20 cents of property and that it is acquired for construction of a building for the Malappuram Post Office. But the construction could be made only when funds are made available by the Government of India. It is further contended that the rent demanded by the landlords are unreasonable.

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PW-1, first petitioner in RCP was examined on the side of the landlords and RW 1 was examined on the side of the tenants. Exts.A1 to A9, B1 to B7 and C1 & C1(a) are the commission report and sketch were received in evidence before the Rent Control Court in RCP No.7/2015. First petitioner was examined as PW1 and Exts.A1 to A8 were marked in RCP No.8/2015. No oral or documentary evidence was adduced by the tenants. Commission Report was marked as Ext.C1.

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R.C.Rev.Nos.186 & 187 of 2022

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The Rent Control Court after considering the evidence, allowed eviction under Section 11(3) of the Act as per order dated 24.06.2016 in RCP No.7/2015 and allowed enhancement of rent of the petition schedule building by fixing the rent as Rs.11400/- in RCP No.8/2015. The tenants preferred R.C.A.No.51/2016 (against RCP No.7/2015) and R.C.A.No.52/2016 (against RCP No.8/2015). The Rent Control Appellate Authority, Manjeri, considered the entire matter in detail. The evidence was considered and re-appreciated. After such elaborate consideration, the Appellate Authority confirmed the findings of the Rent Control Court and the appeals were dismissed.

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Heard the learned counsel appearing for the petitioners and also the learned counsel appearing for the respondents. Since, both revisions are filed by the same parties and in respect of the same tenanted premises, these revisions petitions are tried together.

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The learned counsel for the revision petitioners submits that the projected need of the landlords is only a mere desire or irrational desire and it could not be said that there is a

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R.C.Rev.Nos.186 & 187 of 2022

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bona fide requirement.It was further contended that the landlords had earlier sent a demand notice demanding enhancement of rent which was refused and this eviction petition is filed subsequent to the refusal by the tenants to pay the enhanced rent. The revision petitioners further contended that the tenants are running Head Post Office in the scheduled room at Malappuram for providing public service under the Postal Department. The petition scheduled rooms are highly necessary for the tenants for running the postal services. The learned counsel for the revision petitioner further submitted that approval for construction of a new building to house Head Post Office, Malappuram in the property owned by the department is also received and the process is on the way.

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The bona fide need of the landlords is to start a wholesale fancy business. In order to prove the requirement, PW1 was examined. During cross examination, the tenants could not controvert regarding the need projected by the landlords. PW1 has deposed that they need the petition schedule room to start a wholesale business in fancy items. Even in cross examination the tenants could not bring in any evidence to discredit the bona fide

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R.C.Rev.Nos.186 & 187 of 2022

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requirement of the landlords. The landlords succeeded in establishing that the need projected is geniune. In a decision reported in Deena Nath v. Pooran Lal [(2001) 5 SCC 705], it was held that bona fide requirement has to be distinguished from a mere whim or fanciful desire. The ' bona fide requirement' is in praesenti and must be manifested in actual need so as to convince the court that it is not a mere fanciful or whimsical desire.

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The contention of the tenants that the petition lacks bona fides as the landlords had earlier issued demand notice demanding enhancement of rent which was turned down by the tenants cannot be accepted. Even if the landlord asks for more rent it will not affect the bona fides of claim. The landlords have succeeded in proving that their need is bona fide for the requirement of the tenanted premises for them to start business. Further, the tenants also failed to prove that the landlords are in possession of suitable vacant room in the locality to fulfill the requirement projected. Per contra, the tenants admitted that they are in possession of 20 cents of land wherein they can very well construct a new building to start Head Post office. The tenants

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R.C.Rev.Nos.186 & 187 of 2022

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also failed to prove the protection under Section 11(3) of the Act.

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The next issue regarding fixation of fair rent, the

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learned counsel for the revision petitioners contended that the rent of Rs.6000/- was being paid from 2005 onwards. In the letter dated 31.08.2010 the landlords have expressed their willingness to rent out the premises subject to enhancement of rent to Rs.20/per Sq.ft. The assessment committee on 16.02.2012 decided to recommend revision of rent at Rs.9500/- per month and the decision was intimated to the landlords on 12.06.2012. The claim of the landlords at Rs.60/- per Sq.ft. per month is exorbitant. There is no need of enhancement of rent since the building is very old one. The rent control court after proper appreciation of evidence allowed the petition by enhancing the rent of the petition schedule building @10% of the rent fixed as per the last renewal lease deed of the year 2006, annually as there was no fixation of rent by mutual consent and fixed the rent to Rs.11,400/- The appellate authority also concurred with the finding of the court below.

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The rent was fixed at Rs.6000/- in the year 2006. The

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R.C.Rev.Nos.186 & 187 of 2022

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petition for enhancement of rent was filed in the year 2015, after nine years. It is an admitted fact that the revision petitioners recommended a revision of rent to Rs.16,500/- from 01.09.2010 for a period of 5 years. The rent control court after elaborate consideration of all the aspects have fixed the rent at Rs.11,400/as the fair rent from the date of petition together with interest @6% per annum for the enhanced rent due, from the date of petition ie;03.03.2015 till payment, in case tenants fails to pay the rent due within 30 days from the date of order.

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Both the fact finding courts have concurred with the view. The said enhancement is just and reasonable and we do not find any reason to interfere with the judgments and orders passed by the courts below. However, we hold that the interest awarded for enhancement of rent by the court is not justified. Hence, we hereby set aside the interest granted by the rent control court on the enhanced rent.

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The findings rendered by the courts below were well supported by evidence on record and could not be said to be perverse in any way, the High Court could not re-appreciate the evidence and

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R.C.Rev.Nos.186 & 187 of 2022

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interfere with the concurrent findings by the courts below while exercising revisional jurisdiction.

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Hence, we find no reason to interfere with the findings in the judgments of the Appellate Authority and the orders of the Rent Control Court, on the ground of illegality, irregularity or impropriety. Hence, these Revision Petitions fail. We, accordingly, dismiss R.C.Rev.Nos.186/2022 and 187/2022. However, we grant time upto 30.09.2023 to the tenants to surrender the building on the following conditions;

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(a)The tenants shall file an undertaking before the Rent Control Court or the Execution Court as the case may be, within two weeks from the date of receipt of a certified copy of this order, that they will surrender vacant possession of the petition schedule shop rooms to the petitioners-landlords on or before 30.09.2023.

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(b) The tenants shall clear the entire arrears of rent if any, within one month from the date of receipt of certified copy of this judgment and shall continue to pay rent till they vacate the building. Needless to say the rate of rent from the date of petition shall be the fair rent of Rs.11,400/- fixed by the court below.

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R.C.Rev.Nos.186 & 187 of 2022

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conditions stated above, the time limit granted by this order to surrender vacant possession of the petition schedule shop rooms will stand cancelled automatically and the petitioners-landlords will be at liberty to proceed with the execution of the order of eviction.

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Sd/-

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A.MUHAMED MUSTAQUE, JUDGE

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sd/-

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SHOBA ANNAMMA EAPEN,

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JUDGE

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MBS/

Union of India, v. M.Shaik Muhammed

Case brief

What is this about?

What did the court decide?

Union of India, v. M.Shaik Muhammed

Case brief

What is this about?

What did the court decide?

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