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R.C.R. No. 303 of 2006 - K.N. Marzook Vs. A.J. Simon, 2012 (2) KLT 276 : 2012 (2) KLJ 353 : 2012 (2) KHC 345

posted Jun 5, 2012 1:50 AM by Law Kerala   [ updated Jun 5, 2012 1:54 AM ]
(2012) 246 KLR 803
IN THE HIGH COURT OF KERALA AT ERNAKULAM

 
PRESENT: THE HONOURABLE MR.JUSTICE R.BASANT & THE HONOURABLE MR.JUSTICE V.CHITAMBARESH 
SUNDAY, THE 4TH DAY OF MARCH 2012/14TH PHALGUNA 1933 
RCRev..No. 303 of 2006 & CROSS OBJECTION NO.79 OF 2006 
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RCA.97/2004 of VI ADDL.DISTRICT COURT, ERNAKULAM 
RCP.148/2003 of I ADDL.M.C.,ERNAKULAM 

REVISION PETITIONER(S)/REVISION PETITIONERS/RESPONDENTS:: 
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1. K.N.MARZOOK RATNAPURI, ERG ROAD, ERNAKULAM. 
2. K.N. SHAMSUDHEEN, S/O. LATE C.K. KASMI, RATNAPURI, ERG ROAD ERNAKULAM. 
3. K.N. ABDUL GAFOOR, S/O.LATE C.K.KASMI, RATNAPURI, ERG ROAD, ERNAKULAM. 
4. K.N. FAJAR, S/O. LATE C.K. KASMI, RATNAPURI, ERG ROAD, ERNAKULAM. 
BY ADV. SRI.TOM K.THOMAS 
RESPONDENT(S)/APPELLANT/RESPONDENT:: 
------------------------------------ 
A.J.SIMON AGED 47 YEARS, ARAMMAL JEWELLERY, BROADWAY ERNAKULAM. 
BY ADV. SRI.SHAJI P.CHALY 
THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 8.3.2012 ALONG WITH CO. 79/2006, THE COURT ON 4.4.2012 PASSED THE FOLLOWING: 

"C.R. " 
R.BASANT & V.CHITAMBARESH, JJ. 
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R.C.R.No. 303 of 2006 & Cross Objection 79 of 2006 
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Dated this the 4th day of March, 2012 
Head Note:-
Kerala Buildings (Lease & Rent Control) Act, 1965 - Section 2(1) & 11(8) - Is 'functional integrity' a relevant factor apart from 'structural oneness' to decide whether the premises is a part of the building? 

Held:-   The functional integrity of both the portions is the prime factor to decide whether one is a part of the building housing the other. The fact that a purchaser could be inducted into the premises sold without affecting the other is of course a relevant factor. But that is not conclusive to decipher as to whether both the premises are part of the same building or two separate independent buildings. The following tests can profitably be applied to decide whether the premises is part of the building for section 11 (8) of the Act to apply. They are: i) Common title deeds, ii) Common construction, iii) Common foundation, iv) Common roof, v) Structural oneness & vi) Functional integrity.
O R D E R 

Chitambaresh, J. 

Is 'functional integrity' a relevant factor apart from 'structural oneness' to decide whether the premises is a part of the building in the context of section 11(8) of the Kerala Buildings (Lease & Rent Control) Act, 1965 ('the Act' for short) ? We have heard Mr.Tom K Thomas, Advocate on behalf of the landlords and Mr.S.P.Chaly, Advocate on behalf of the tenant in extenso on this interesting question. An attempt to settle the dispute amongst the parties harmoniously by reference to the Mediation Centre has proved to be of no avail. 

2. The landlord sought eviction of the tenant on the ground of arrears of rent, subsequent acquisition of building and additional accommodation. The arrears of rent were paid during the pendency of the proceedings and therefore the claim under section 11(2) of the Act does not survive. The claim for eviction on the ground of subsequent acquisition under section 11(4)(iii) of the Act has been concurrently turned down by the courts below and is not assailed. But the finding on the ground of additional accommodation under section 11(8) of the Act by the courts below is divergent. The Rent Control Court upheld the claim of the landlords which has been reversed in appeal by the tenant by the appellate court. This is challenged by the landlords in this rent control revision under section 20 of the Act reiterating their claim for eviction of the tenant. 

3. The commercial building houses two shop rooms bearing Door Nos.40/2532 and 40/2533 in the busy Broadway Market at Ernakulam. These shop rooms were in the respective possession of the fourth petitioner and the respondent as tenants under the erstwhile landlord. The erstwhile landlord had leased out the shop room to the fourth petitioner as per Ext.A1 lease deed dated 8.8.1997. Subsequently the whole building was taken assignment of in the name of the four petitioners by Ext.A2 sale deed dated 23.6.2003. The schedule of the document shows that the total extent of the property is only 2 cents in Kanayannur Taluk of Ernakulam Village. 

4. The erstwhile landlord issued Ext.A5 letter to the respondent intimating him about the assignment and requesting him to attorn to the petitioners. Thereafter the petitioners as landlords issued Ext.A6 notice seeking eviction of the respondent from the premises as tenant. It was specifically stated in the notice that the premises in the possession of the tenant was part of the building. The tenant though issued Ext.A7 notice in reply did not dispute the fact that the premises was part of the building. The failure to vacate the premises by the tenant led to the filing of the rent control petition by the landlords on the grounds aforesaid. 

5. The landlords are conducting business in electronic goods under the name and style 'WHITE PLANET' in the shop room in their occupation. The tenant is conducting business in gold under the name and style 'ARAMMAL JEWELLERY' in the other shop room. The specific need alleged is that the landlords require the premises for expanding their business in electronic goods of various types. The principal objection of the tenant is that the premises in their occupation is not part of the building to invoke section 11(8) of the Act. The contention of the tenant is that the landlords cannot seek additional accommodation and could at best lay a claim only under section 11(3) of the Act. 

6. The recitals in Ext.A2 sale deed itself reveals that the property which is a two storied building with appurtenant land had been dealt with as a compact block in earlier transactions. The fact that the shop rooms have a common roof has been noticed in Ext.C1 report of the Advocate Commissioner. The tenant as RW.1 has conceded in evidence that the shop rooms have a common roof. The first floor of both the shop rooms is utilised as a single unit by a firm 'Colombo Umbrella House' in which some of the landlords are also partners. Both the shop rooms have a common foundation as per the indications presently available and there is no specific contention that it was constructed separately.

7. The tenant vehemently contended that both the shop rooms are not separated by a common dividing wall and that there is an intervening gap between the two walls. The tenant asserted that the premises occupied by him could be sold independently by the landlords. The tenant highlighted that the purchaser could be inducted into possession of the premises sold without affecting the other portion. Reliance in this connection was placed on the decision of the Supreme Court in Gangaram v. Sankar Reddy (AIR 1989 SC 302). 

8. We feel that the functional integrity of both the portions is the prime factor to decide whether one is a part of the building housing the other. This should be in addition to the structural oneness to term it as 'a part of the building' in order to call in aid section 11(8) of the Act. The business of electronic goods could be functioned as an integral unit in both the shop rooms by the landlords after getting vacant possession. The undisputed evidence is that the entire premises could be used as one building by the landlords on demolition of the intervening walls separating the two portions. It would be inappropriate therefore to view the building as consisting of several disintegrated units and not as one integrated structure. A reference to the decision in Sri Balaganesan Metals v. M.N.Shanmugham Chetty (1987 (2) SCC 707) is apposite. 

9. The term 'building' as defined in Section 2(1) of the Act in juxtaposition with the context in which it appears in Section 11(8) of the Act may appear incongruous. But it has been explained in a catena of decisions that Section 11(8) of the Act would be rendered otiose if the definition of the building in the Act is literally adopted. Black's Law Dictionary (Ninth Edition) describes building as a permanent structure with walls and a roof. The fact that a purchaser could be inducted into the premises sold without affecting the other is of course a relevant factor. But that is not conclusive to decipher as to whether both the premises are part of the same building or two separate independent buildings. 

10. The following tests can profitably be applied to decide whether the premises is part of the building for section 11 (8) of the Act to apply. They are: 
i) Common title deeds 
ii) Common construction 
iii) Common foundation 
iv) Common roof 
v) Structural oneness & 
vi) Functional integrity 
So viewed we conclude that the shop rooms occupied by the landlords and the tenant are part of the same building and that the ground of additional accommodation can be called in aid. 

11. We have no doubt that the landlords are pleading an honest purpose in seeking eviction of the tenants on the ground of additional accommodation as found by the courts below. Yet another factor which deserves our consideration is about the comparative hardship under section 11(10) of the Act. The hardship that may be caused to the tenant by granting eviction should out weigh the advantage to the landlords. The  appellate court has held that the hardship would be more to the tenant by granting eviction. This is for the reason that the tenant may have to spend huge amount for getting an alternative accommodation especially in a busy market. 

12. The fact that the landlords are affluent and that the tenant may have to shell out money for alternative accommodation is no ground to deny eviction. The comparative hardship even if there is any can be mitigated by granting a reasonable time to vacate. We are fortified in this view by the decision in Bhimanagouda Basanagouda Patil v. Mohammed Gudusaheb (2003 (3) SCC 101). We therefore grant the tenant a period of 18 months to vacate the commercial premises in question. We hold that comparative hardship under section 11 (10) of the Act can be mitigated by granting larger time to vacate as above. 

13. There is a faint plea that the landlords have no title to the property and that it belongs to Thirumala Devaswom who has filed a suit. But such a contention cannot be raised by the tenant since the premises were leased to them by the assignor under Ext.A2 sale deed. We therefore dismiss the cross objection and allow the rent control revision setting aside the judgment of the appellate court. The landlords are however liable to return the substantial amount admittedly obtained as advance from the tenant at the time of surrender of the premises. We deem it fit to tentatively fix the fair rent at the rate of Rs.5,000/- per month from 1.4.2012 for the premises since the prevailing rent at the rate of Rs.2200/- per month was fixed more than a decade ago. We restore the order of the rent control court and grant an order of eviction to the landlords under section 11(8) of the Act subject to the following terms: 
(i) The tenant shall clear the entire arrears of rent as on 31.3.2012 on or before 31.5.2012 and shall continue to pay occupation charges at the rate of Rs.5000/- per month till he vacates the premises on or before 30.9.2013. 
(ii) The tenant shall file an affidavit in the rent control court on or before 31.5.2012 undertaking unconditionally to vacate the premises within the time permitted as above. 
(iii) The tenant would lose the benefit of the extended time for surrender, if he defaults to comply with conditions (i) and (ii) afore stated. 
In the result, the rent control revision is allowed and the Cross Objection is dismissed. No costs. 
R.BASANT, JUDGE. 
V.CHITAMBARESH JUDGE 
nj.