IMPORTANT POINT
While considering the question of bonafides, 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.

Headnote:(i) Constitution of India-Art. 227-Revisional jurisdiction-High Court reviewed findings and reversed order of statutory Revisional Authority-High Court erred factually in narrating facts-Narration of facts is totally incorrect and contrary to pleadings and evidence-High Court substituted its view in place of view taken by statutory authority-It was not within jurisdiction of High Court while exercising powers under Art. 227 of Constitution.
       Held; 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 conceded by the counsel appearing for the tenant and, therefore, the need was bona fide. 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. (Para 11)
       (ii) Kerala Buildings (Lease and Rent Control) Act-Section 11(3)-Eviction petition-Bonafide requirement-Principal ground that building in landlord s occupation was under immediate threat of acquisition by Town Planning Authority-In pleadings, landlord required premises for his residence and to conduct his affairs -At time of giving evidence, he submitted that he required building for running his business which he is presently running in premises in his occupation-Business mentioned was that of Travel Agency-Petition dismissed-Appellate Authority reversed order of Rent Controller and ordered eviction-Alleged acquisition initiated in 1987 must be deemed to have been either given up or lapsed due to efflux of time-Principal ground alleged not available to landlord-High Court erred in ordering eviction in exercise of its revisional jurisdiction by substituting its view in place of statutory authority High Court also erred factually in narrating facts which was contrary to pleadings and evidence-Order of Rent Controller restored. (Paras 7, 8, 11, 12)
       (iii) EVICTION PETITION-Bona fide requirement-mere desire on part of landlord not enough-desire must be tested objectively and not subjectively-Burden lies upon landlord to establish that he genuinely requires accommodation. (Para 8)

JUDGMENT

K. Venkataswami, J.-This appeal by special leave is preferred against the judgment of the Kerala High Court dated 3.10.1991 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 question on the grounds that the appellant wilfully defaulted in payment of rents and the premises was required bona fide for use by 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.

2. 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 to the owner to be displaced.

3. 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 wilful default in payment of rents was not established and that there was no bona fide need of the building in question for the occupation of the landlord as the landlord has not faced a situation requiring immediate eviction from the building in his occupation.

4. 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 by 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 by 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 appellant-tenant. It is under these circumstances that the present appeal by special leave has been preferred by the appellant-tenant.

5. 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.

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1997 Supreme(SC) 1651

IMPORTANT POINTWhile considering the question of bonafides, 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.

Cases Referred (1)

IMPORTANT POINT
While considering the question of bonafides, 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.