IN THE HIGH COURT OF KERALA AT ERNAKULAM

Pius C. Kuriakose & A.V. Ramakrishna Pillai, JJ.

R.C.R. No. 361 of 2010

Dated this the 30th day of May, 2012

Head Note:-

Kerala Buildings (Lease and Rent Control) Act, 1965 - Sections 11(3), 11(12) and 11(13) - There is no requirement under the statute that the tenant should occupy the building for doing the very same business which is projected in the Rent Control Petition.  

Kerala Buildings (Lease and Rent Control) Act, 1965 - Section 11(12) -  If the landlord has a justifiable cause for changing the business, the tenant is not entitled to be reinducted under sec. 11(12). 

Held: - The landlord who obtains possession of the tenanted premises can start a business different from the proposed one if the landlord has reason to believe that the proposed business would not be profitable. The right of the tenant for re-induction conferred under sec. 11(12) of the Act stems out of the legislative intention to stall unjustifiable evictions under the pretext of bonafide need. The said provision does not curtail the right of a landlord to use the tenanted premises in a most useful and effective manner. However, the landlord who uses the tenanted premises for an entirely different need should specifically state the reasons for the same and if it appears to be reasonable, there is no question of reinducting the tenant to the tenanted premises on the ground that the landlord has started a business different from what was projected in the claim petition.   

Kerala Buildings (Lease and Rent Control) Act, 1965 - Sections 11(3), 11(12) and 11(13) -  A landlord can resist an application of the tenant under sub sec. (12) of Sec. 11 only if he could establish that the Accommodation Controller has rejected the claim of the tenant for restoration of possession of the tenanted premises in exercise of the power vested in him under sub sec. (13).

For Petitioner:-

• T.K. Vipindas
• P.K. Priya
• K.V. Sree Vinayakan 

For Respondent: 

• Millu Dandapani

O R D E R

A.V. Ramakrishna Pillai, J

1. The landlord is the revision petitioner.

2. Alleging failure on the part of the revision petitioner to occupy the tenanted premises which was taken delivery pursuant to an order under Sec. 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as the ‘Act’ for short) in RCP No.89 of 1997 on the file of the Rent Control Court, Thrissur, the respondent (tenant) approached the said court under Sec. 11 (12) of the Act praying that he be restored to possession of the building.

3. The revision petitioner resisted the petition. He contended that his wife for whose need, eviction was sought for, had occupied the premises and had begun the proposed garment business pursuant to the need projected in the Rent Control Petition. However, as the business did not flourish, she started business of hardware in the tenanted premises. His further case was that he also helped his wife in the business. It was further contended that the petition was barred by limitation, since it was filed only after the expiry of the period of one month under sub s. (13) of Sec. 11. Other contentions were also raised.

4. The Rent Control Court, considering the evidence consisting of the oral testimonies of Pws.1 to 3, Rws.1 and 2 and CW1 as well as Exts.A1 to A9, B1 to B9, C1 and Exts.X1 to X10, dismissed the petition.

5. The learned Rent Control Appellate Authority, who heard the appeal preferred by the respondent, allowed the appeal by the impugned order and directed the revision petitioner to restore possession of the premises within two months from the date of the order. The said order has resulted in this revision.

6. We have heard the learned counsel for the revision petitioner and the learned counsel for the respondent. We have also perused the impugned order as well as the order of the Rent Control Court.

7. The first contention raised by the revision petitioner is that under Sec.11(13) of the Act, the tenant should have exercised his right of applying for repossession if he is so entitled within one month of the date on which the right to make the application accrued to him. If he does not do so, he forfeits such right and thereupon the officer referred to in sub sec. (1) of Sec.4 of the Act gets the right specified in Sec.4(3) and the right which once accrued in favour of the officer under Sec.4 (1) of the Act does not revert back to the tenant, so submitted the learned counsel for the revision petitioner. According to him, the application is not maintainable as the period of one month prescribed for the purpose of making the application under Sec.11(3) is a period of limitation expressly provided by the statute for making an application under Sec.11(12) of the Act.

8. The learned counsel for the respondent, per contra, would submit that Sec.11(13) does not give a right as such to the landlord to raise an objection that the application for restoration is beyond time merely because it was filed beyond one month after the accrual of the right of restoration. We notice that both the courts below took the view that the petition is not time barred and held that it is maintainable.

9.  In order to appreciate the rival submissions made at the Bar, it is useful to have a look at Sec.11(12) and 11(13) of the Act. Sub Sec. (12) of Sec.11 of the Act reads as follows:

"(12) Where a landlord who has obtained possession of a building in pursuance of an order under sub-sec. (3), does not occupy it without reasonable cause within one month of the date of obtaining possession, or having so occupied it, vacates it without reasonable cause within six months of such date, the tenant who has been evicted may apply to the Rent Control court for an order directing that he shall be restored to possession of the building, and the Court shall make an order accordingly notwithstanding anything contained in sec. 4."

10. Sub Sec. (13) reads as follows:

"(13) Where a tenant who is entitled to apply for possession under sub-sec. (12) fails to do so without reasonable cause within one month from the date on which the right to make the application accrued to him, the officer referred to in sub sec. (1) of sec. 4, shall have power, if the building is required for any of the purposes or for occupation by any of the officers or persons specified in sub sec. (3) of that sec. to give intimation to the landlord that the building is so required, and thereupon the provisions of sub­sec. (5) and (8) of sec. 4 shall apply to the building: 

Provided that this sub-sec. shall not apply to a building the monthly rent of which does not exceed fifteen rupees".

11. A plain reading of the aforesaid sub sec. would take us to the conclusion that a landlord can resist an application of the tenant under sub sec. (12) of Sec. 11 only if he could establish that the Accommodation Controller has rejected the claim of the tenant for restoration of possession of the tenanted premises in exercise of the power vested in him under sub sec. (13). For this, we draw support from a decision of this Court authored by his Lordship Justice M.P.Menon in Thomas Vs. Kunji Thomman, 1981 KLT 708 wherein it was observed that it is for the Accommodation Controller in proceedings under sub sec. (13) and not for the Rent Control Court in proceedings under sub sec. (12) to examine the reasonable cause the tenant may have; and till the Accommodation Controller does so and arrives at a decision, the tenant's right under sub sec. 12 would survive.

12. This view was followed later in Ramakrishnan Vs. Vasudevan, 1986 KLT 703 wherein it was reiterated that the application of a tenant under sub sec. (12) cannot be opposed by the landlord on the ground of limitation though filed after one month unless it is shown that the Accommodation Controller has rejected the claim of the tenant for restoration of the possession of the building. The revision petitioner does not have a case as that such an event had happened.

13. The same view was expressed by a Division Bench of this Court in Balachandran Vs. P.N.K. Pillai, 2000 (3) KLT 614 holding that Sec. 11(13) of the Act only indicates that a tenant is in danger of loosing his rights under sub sec. (12) of Sec. 11 of the Act if he does not act within one month of the accrual of the right in a case where the Accommodation Controller steps in and use the authority in terms of Sec. 4 of the Act read with Sec. 11(13) of the Act.

14. We do not see any reason to deviate from the views taken by this Court in the decisions referred to above. Thus, we hold that the Rent Control Petition is not barred by limitation.

15. The further argument advanced by the learned counsel for the revision petitioner is that there is no requirement under the statute that the tenant should occupy the building for the very same purpose for which the need is projected in the Rent Control Petition. According to the learned counsel for the revision petitioner, the wife of the revision petitioner had begun readymade garments business within one month of getting eviction and the Appellate Authority failed to appreciate the evidence on record including the receipts, licence etc. obtained by the wife of the revision petitioner for starting the business.

16. The learned counsel for the respondent on the other hand would argue that the need projected in the earlier eviction petition was only a ruse for eviction and the subsequent conduct of the revision petitioner and his wife would indicate that they had no intention to start the proposed business. To appreciate the arguments, we made a quick survey over the evidence on record as we felt that it is necessary to meet the ends of justice.

17. The case of the revision petitioner is that his wife occupied the premises and had begun the garment business pursuant to the need projected in the Rent Control Petition. Since the business did not flourish, she started business in hardware. His definite case is that he also helped his wife in the business. Ext.A1 is the judgment in the original RCP (R.C.P. No.89/1997) from which it can be seen that the bonafide need put forward was for staring a business in readymade garments and sarees in the tenanted premises. Evidently and admittedly too, the appellant took possession of the tenanted premises on 9.4.2003. Ext.X1 would go to show that an application was preferred by the revision petitioner's wife before the concerned authority for getting licence for starting the business of stationery, readymade garments and food items. Ext.X2 is the application for a license to manufacture food for sale. Ext.C1 Commissioner's report would reveal that at the time of the inspection of the Commissioner, she could see hardware items, electrical items and stationery items in the shop room. The Commissioner could also notice a few readymade garments and sarees in the petition schedule premises. It is in evidence that the revision petitioner was conducting hardware business and he had stopped the business subsequently. Exts.B1 to B9 are bills which would go to show that the revision petitioner's wife had purchased goods from Archana Textiles and Fashion Fabrics. Ext.B1 bears the date within one month from the date of obtaining possession. Exts.B8 and B9 bears subsequent dates. These documents would go to show that the wife of the revision petitioner had actually intended to start the proposed garment business in the tenanted premises. As rightly held by the learned Rent Control Court, the wife of the revision petitioner had occupied the shop room and made all attempts to start garment business in the tenanted premises.

18. However, it can be seen from the evidence that apart from garments, other items were also seen stored in the petition schedule premises. When the Commissioner visited the premises on 23-10-2003, she could see a board with the inscriptions 'Kunjavu Hardwares and Electricals in front of the room. Hardware and electrical goods were seen inside the room. The learned counsel for the respondent would submit that the revision petitioner who was conducting a hardware shop in an adjacent room which after discontinuing the business has been let out to a third party where a perfume shop is run. According to the learned counsel for the respondent, this would go to show that there was absolutely no bonafides in the need alleged in the petition for eviction. It has to be noted that the eviction was ordered as it was found that the need alleged was bonafide and a reconsideration of the same is not warranted at this juncture. The revision petitioner's wife who gave evidence as RW1 had filed affidavit wherein it is stated that her husband was running a shop under the name and style Davis Stores in the adjacent room till the end of June 2003 and as the business ran into rough weather, he discontinued the same and started business in real estate.

19. There is no requirement under the statute that the tenant should occupy the building for doing the very same business which is projected in the Rent Control Petition. The landlord who obtains possession of the tenanted premises can start a business different from the proposed one if the landlord has reason to believe that the proposed business would not be profitable. The main ground of attack of the respondent was that the revision petitioner's wife did not begin the garment business pursuant to the need projected by him in the original Rent Control Petition. According to the learned counsel for the revision petitioner, the revision petitioner's wife started the hardware business in the tenanted premises with the assistance of the revision petitioner who has experience in conducting a hardware shop.

20. The right of the tenant for re-induction conferred under sec. 11(12) of the Act stems out of the legislative intention to stall unjustifiable evictions under the pretext of bonafide need. The said provision does not curtail the right of a landlord to use the tenanted premises in a most useful and effective manner. However, the landlord who uses the tenanted premises for an entirely different need should specifically state the reasons for the same and if it appears to be reasonable, there is no question of reinducting the tenant to the tenanted premises on the ground that the landlord has started a business different from what was projected in the claim petition. If the revision petitioner / landlord has a justifiable cause for changing the business, the respondent / tenant is not entitled to be reinducted under sec. 11(12).

21. As the learned Appellate Authority has not considered this particular aspect, we are of the view that the matter has to be remitted back to the Rent Control Appellate Authority for considering whether the wife of the revision petitioner had a genuine reason for changing the proposed business.

22. In the result, the revision is allowed. The impugned order is set aside. R.C.A. No. 123/2006 on the file of the Rent Control Appellate Authority, Thrissur is remanded to the Rent Control Appellate Authority for passing a revised judgment after examining whether the revision petitioner's wife had valid reasons for changing the proposed business.

23. Both sides shall be given an opportunity to adduce further evidence, if they choose.

24. The entire exercise shall be completed and a final verdict shall be given by the learned Rent Control Appellate Authority within three months from the date of appearance of the parties before him.

The parties shall appear before the Rent Control Appellate Authority on 21-06-2012.