PETITIONER:
S.J. EBENEZER
Vs.
RESPONDENT:
VELAYUDHAN & ORS.
DATE OF JUDGMENT: 11/12/1997
BENCH:
A.S. ANAND, K. VENKATASWAMI
ACT
HEADNOTE
JUDGMENT
JUDGMENTK.Venkataswami, J.
This appeal by special leave is preferred against the judgment of the Kerala High Court dated 3.10.1997 in O.P. NO. 1486/87-B. The first respondent herein (landlord) filed R.C.P. No. 170/79 under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter called the ’Act) seeking eviction of the appellant herein from the premises in questions on the grounds that the appellant wilfully defaulted in payment of rents and the premises was required bona fide for use buy the said respondent-Landlord. It was alleged in the petition that another premises under the occupation of the landlord, namely, T.C. 13/1412, was under immediate threat of acquisition for implementing the Palayam Town Planning Scheme.
The appellant-tenant resisted the petition for eviction alleging,. inter alia,. that the application was mala fide one and there was no default in payment of rents. It was also stated by the appellant-tenant that the landlord (first respondent herein), on an earlier occasion, had moved a similar application against his elder brother knowing fully well that the appellant was the tenant. After a full trial, accepting the case of the appellant’s brother, the application for eviction was dismissed and the appeal and further revision filed by the landlord were dismissed. Thereafter, the present application for eviction was filed., It was also stated by the tenant that the pleadings in the petition were vague and the premises already in the possession of the landlord was sufficient and that there was no need to seek eviction of the appellant from the suit premises. It was further stated in the counter statement that there are other buildings owned by the landlord for occupation. The appellant seriously disputed the main reason given for own occupation stating that the alleged acquisition proceedings had not taken off and there was no threat at all. Even otherwise if the acquisition is for improvement of Palayam Town Planning Scheme, the owners will not be dispossessed until alternative accommodation was provided until alternative accommodation was provided to the owner to be displaced.
On the above pleadings, the parties proceeded with the trial by leading oral and documentary evidence. The learned Rent Controller by his Order dated 13.10.1980 found that the ground of willful default in payment of rents was not established and that there was no bona fide need of the building question for the occupation of the landlord as the landlord has not faced a situation requiring immediate eviction from the building in his occupation.
The landlord aggrieved by the dismissal of R.C.P. for eviction preferred an appeal to the Appellate Authority, Trivandrum, which considered the case and by its judgment dated March 29.1982 allowed the appeal ordering eviction of the appellant holding that the need of the landlord was bona fide especially when the house in his occupation was under immediate threat of acquisition bu the Town Planning Authority. The appellant aggrieved by the judgment of the Appellate Authority preferred a statutory revision to the District Court, Trivandrum, which by an order dated January 24,1983 reversed the judgment of the Appellate Authority and restored the order of the Rent controller dismissing the petition for eviction. Against the order of the District Court. the landlord preferred a revision to the High Court which was dismissed on the ground that no second revision lies to the High Court. Thereafter, the landlord preferred a revision under Article 227 of the Constitution of India and the High Court buy its judgment dated October 3, 1991 allowed the revision and upset the order of the District Court resulting in the order of eviction of the appellanttenant. It is under these circumstances that the present appeal by special leave has been preferred by the appellanttenant.
Mr. T.L. Vishwanatha Iyer, Learned senior counsel appearing for the appellant, took us through the orders of the authorities and of the High Court. According to the learned counsel, the High Court failed to bear in mind that while exercising the jurisdiction under Article 227 it cannot reappreciate the evidence and substitute its own judgment in place of the judgment of the statutory authorities.. He pointed out that on the question of ’bona fides’ the view taken by the Rent Controller and the Revisional Authority on the facts of this case was the correct one and the contrary view taken by the First Appellate Authority and accepted by the High Court is not in accordance with the provision of the Act and also contrary to the pleadings and evidence produced before the Rent Controller.
On the other hand, Mr. K.John Mathew, learned senior counsel appearing for the first respondent-landlord, submitted that the High Court was will within its jurisdiction in reversing the judgment of the Revisional Authority on the facts of this case and the view taken by it on the questions of bona fides is quite in accordance with the pleadings and evidence given before the Rent Controller. We have gone through the orders of the statutory authorities and that of the High Court.
It is common fact that the principal ground on which the landlord sought eviction was that the building in his occupation was under immediate threat of acquisition by the Town Planning Authority under the provisions of the Land Acquisition Act. It is again an undisputed fact that in the pleadings the first respondent required the premises in question for his residence and to conduct his ’affairs’. He has not disclosed in the application what those ’affairs’ are. However, at the time of giving evidence he has submitted that he required the building for running his business which he is presently running in the premises in his occupation. The business mentioned by the first respondent was that of Travel agency, It is also an admitted fact that the first respondent was running his business in a room in Mascot Hotel. The Rent Controller, who had the opportunity of observing the demeanour of the witness, has stated as follows:-
"Even though the applicant would
state that he needs the building to
conduct his ’affairs’ in the
application he has not cared to
disclose what those ’affairs’ are.,
Nevertheless, at the time of
enquiry he has disclosed those
’affairs’. According to him he
needs the building for funning his
business which is now being run in
premises No.13/1412. His business
by way appears to be some travel
agency. it would appear from the
allegations that he needs this
building since the building
bearing door number 13/1412 is
about to be acquired for some
public purpose., Any how at the
time of his cross examination he
admitted that the Town Planning
Scheme for which T.C. 13/1412 is
about to be acquired envisages
alternate accommodation to those
who will be affected by the Scheme.
If that be so there is no need to
get the disputed building vacated.
Probably due top this difficulty
that the applicant was forced to
sweat in the course of his cross
examination that even if the Town
planning Scheme does not
materialise he had an idea to shift
his business from the existing T.C.
13/1412. His evidence shows that he
is very often altering his position
to suit his convenience as the
situation demands. In the cross
examination he states that there
are practical difficulties in
running his business in T.C.
13/1412 and so he needs the
building involved in these
proceedings. He has no such case
either in his application or in the
evidence adduced by him while being
examined by his own counsel."
In that background, the Rent Controller appreciated the bona fide need of the landlord and held as follows:-
" The building in question is in a
lane. It is an old one, Even before
the applicant got right over this
building it was being used as a
residential building. Even now it
is being used as a residential
building. The travel agency now
being run bu the applicant has
admittedly a counter in a posh
hotel at Trivandrum, If the
intention of the applicant is to
attract tourists and to improve his
business the building in question
can have only the value of an antic
and nothing else. If viewed in this
angle his idea top shift his
business to this building appears
to be a ruse to evict the
respondent. I have already pointed
out that the applicant did not fact
a situation which required
immediate shifting of his business
for the last 4 years. His case
regarding the need to have this
building is not consistent. It
changes very often. Apart from the
building involved in these
proceedings admittedly he is having
right over 3 or 4 buildings in the
same city. Even though it is only
fractional. Now the family business
is being run by the members jointly
headed buy the father. The decision
regarding the place where the
business is to be shifted. His
claim that he need the building for
his residence, in the circumstance,
does not appear to be genuine. As a
whole I feel that the attempt of
the applicant is to evict the
respondent under some pretext or
other. I therefore find that the
bonafide need put forth bu the
applicant is only a ruse to evict
the respondent from the premises.
The applicant is therefore not
entitled to an order directing the
respondent to put him in possession
of the building involved in these
proceedings on the ground mention
ed in Section 11 (3) of Act 2 of
1965."
As against the above appreciation and findings of the Rent Controller, the Appellate Authority proceeded that for an eviction on the ground of bona fide need for own occupation under Section 11 (3) of the Act the only requirement was that the landlord must establish that the premises from which the tenant was to be evicted was the only p remises owned by him in the city or town. The appellate Authority held as follows:-
" So the bonafide of the
petitioner’s requirement has to be
tested in the background that the
schedule building is the only
building belonging exclusively to
him."
After coming to that conclusion and finding that the schedule building was the only building exclusively belonging to the landlord, the appellate Authority found that the requirement was Bona fide. The Appellate Authority on the other aspect, Namely, the acquisition by the Town Planning Authority took note of the fact that the authorities concerned have issued the declaration under Section 6 of the Land Acquisition Act and thereby expressed their final decision to proceed with the acquisition. Therefore, there was necessity for the landlord to seek eviction of the appellant from the schedule building. The contention advanced on behalf of the tenant that there was no probability of the authorities proceedings with the acquisition was not accepted buy the Appellate Authority. It was also the view of the Appellate Authority that in rent control proceedings the pleadings need not be as elaborate as in normal ‘civit suits. The pleading that he required the schedule premises for his own residence and for other affairs sufficient on the facts of this case, On these findings, the Appellate Authority reversed the order of the Rent Controller and ordered eviction of the tenant. While considering the question of bona fides, what is necessary to bear in mind is that mere desire on the part of the landlord is not enough. The desire must be tested objectively and not subjectively. The burden also lies upon, the landlord to establish that he genuinely required the accommodation for the purpose of starting or continuing his own business (vide Mattulal Vs. Radhe Lal _ (1974) 2 SCC 365). The Appellate Authority has not followed the above test before giving the finding on the question of bona fide need of the landlord.
The Revisional Authority elaborately considered the issues raised before it and found as follows:-
"It is well evident that the need
urged by the landlord in this
connection would really based upon
an apprehension that in the event
of dispossession of T.C.13/1412 the
landlord and rest of the members of
his family will be practically in
the streets devoid of any
accommodation. This extreme,
apprehension will be seem to be
belied by the very admission made
by the landlord as PW1 when read in
conjunction with the last paragraph
at page 2 of Ext .A1.
The Revisional Authority also found on the issue of bona fides as follows:-
" It will therefore be seen that
for that simple reason the need
urged in respect of the business is
liable to be found against on the
ground of inadequate pleading. It
will also be seen that even if it
is possible to hold that the said
claim is amply supported by
necessary particulars as disclosed
in the Rent Control Petition, Such
a need will seem to be not genuine
or bonafide. At the time of trial,
the landlord disclosed that the
business which he proposes to
conduct in the schedule premises is
that of a travel agency. It has
also been conceded that the
landlord is doing such a business
not at T.C.13/1412 but only in one
portion of the premises taken on
rent at the building where the
Mascot Hotel at Trivandrum is being
conducted. The Rent Controller felt
that the schedule premises will be
inadequate for running a business
in travel agency and therefore it
is not likely that the landlord
will shift the travel agency from
the Mascot Hotel at Trivandrum to
the schedule premises. The learned
Rent Appellate Authority however
took the view that a travel agency
business can be run in any corner
of the city and the customers will
go based on the goodwill and
reputation on the agency. The
learned Appellate Authority also
felt that the Commission report in
the case would not indicate the
unsuitability of the schedule
premises to accommodate the travel
agency business. The learned
counsel; for the revision
petitioner argued that the absence
of evidence on this aspect shall go
only against the landlord and not
against the tenant. It has already
been seen that the burden to prove
the bonafide need as well as its
genuineness is certainly on the
landlord as has been noticed from
the ruling of the Supreme Court in
Mattulal Vs. Radhelal - AIR 1974
Supreme Court 1596. It will
therefore be seen that from other
points of view it is possible to
hold that the landlord is not
entitled for an order of eviction
on the ground mentioned in section
11(3) for the purpose of running
his travel; agency business in the
schedule premises.
After finding that the observations of the learned Appellate Authority are vitiated by errors of law and errors of fact, the Revisional Authority set aside the order of the Appellate Authority and restored that of the Rent Controller dismissing the eviction petition.
As noticed earlier, the landlord initially preferred a second revision to the High Court which was dismissed on the ground of maintainability and thereafter a revision under Article 227 was filed. While exercising the revisional jurisdiction the High Court reviewed the findings and reversed the order of the statutory Revisional Authority. The High Court in that process erred factually in narrating the facts. The High Court proceeded as if the travel agency business run by the landlord in Mascot Hotel was under threat of acquisition proceedings and that fact has been concede buy the counsel appearing for the tenant and, therefore, the need was bona fade. The High Court states as Follows:-
"He is carrying on the business in
travel agency in a room leased out
to him in Mascot Hotel. It is in
evidence that Government have
initiated proceedings to evict the
petitioner from that premises. This
fact is conceded before me by the
respondents’ counsel.
The above narration of facts is totally incorrect and contrary to the pleadings and evidence. A reading of the order of the High Court will show that it has substituted its view in the place of the view taken by the statutory authority which is not within the jurisdiction of the High Court while exercising powers under Article 227 of the Constitution of India. Apart from the above, it is now an admitted fact that the alleged acquisition initiated in the year 1987 must be deemed to have been either given up or lapsed due to efflux of time. This position is not disputed by the learned counsel for the first repsondent-landlord. If this is so, the principal ground on which the application for eviction was presented before the Rent Controller is not available to the landlord. This is yet another ground for allowing this appeal.
For the reasons stated above, the appeal is allowed, the order of the High Court is set aside and that of the Rent Controller is restored. There will be no order as to costs.