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2018 Supreme(Online)(KER) 24540
HIGH COURT OF KERALA
K.HARILAL, ANNIE JOHN, JJ
SUNNY PADAMADAN RAFAEL @ SUNNY PADAMADAN – Appellant
Versus
VIJAYA SHENOY, Advocate - SRI S B PREMACHANDRA PRABU (CAVEATOR – Respondent
RENT CONTROL REVISION 375/2018
A licensee does not hold legal possession as a tenant; hence, grounds for eviction under Section 11(4)(iii) do not apply, affirming the bona fide need criterion under Section 11(3).
Headnote:
Eviction - Tenant Rights - Kerala Buildings (Lease & Rent Control Act) - Sections 11(3), 11(4)(i), 11(4)(iii) - The court interpreted the distinction between lease and license, concluding that a licensee’s possession does not satisfy eviction grounds under Section 11(4)(iii), while confirming eviction under Section 11(3) based on bona fide need.
Fact of the Case:
The petitioner, a landlord, sought eviction of the tenant under Sections 11(3) and 11(4) of the Kerala Rent Control Act, asserting a bona fide need for the property for a hardware shop, while the tenant contested the claim, asserting no suitable alternative premises were available.
Finding of the Court:
The court upheld the lower courts' findings of bona fide need but scrutinized the nature of possession claimed by the tenant, ruling that the tenant's occupancy as a licensee did not meet the legal requirements for eviction under Section 11(4)(iii).
Issues: Whether a tenant can be evicted under Section 11(4)(iii) for having a license to occupy another building that is reasonably sufficient for his requirements, and the legitimacy of the landlord's claimed bona fide need for eviction.
Ratio Decidendi: The distinction between lease and license is critical; legal possession cannot be claimed by a licensee, thus invalidating claims for eviction under 11(4)(iii) while confirming the landlord's bona fide need under 11(3).
Final Decision: The eviction order under Section 11(4)(iii) is set aside, while the order under Section 11(3) is confirmed.
ORDER
K.Harilal, J.
The revision petitioner is the tenant, who is confronting with an order of eviction, passed concurrently under Sections 11(3) and 11(4)(iii) of the Kerala Buildings (Lease & Rent Control Act), 1965 [Hereinafter referred to as, 'the Act]. (The parties are referred to as in the Rent Control Petition).
2. The petitioner filed RCP.No.136/2016 before the Rent Control Court, Ernakulam under Sections 11(3), 11(4)(i) and 11(4)(iii) of the Act. According to the petitioner, she bona fide needs the petition schedule building for starting a hardware shop. The petition schedule building is a portion of the ground floor of the building by name, Radhakrishna building, Cloth Bazar Road, Ernakulam. The entire ground floor having a total area of 1600 Sq.ft. belongs to the petitioner. She is in possession of the rest of the area on the ground floor having 1200 Sq.ft., which was earlier in the possession of a tenant, and now she got vacant possession of the said portion in June, 2016. According to her, she wants to start the aforesaid Hardware and Cement shop, using the entire ground floor. It is alleged that the portion of the building, which is in her possession, is having no road frontage. According to her, after getting vacant possession of the petition schedule building, she intends to remove the wall in between the petition schedule shop room and northern portion of the petition schedule building and to make necessary arrangements in the entire ground floor, so that she will get road frontage to the entire ground floor, and the same can be utilized for the proposed business. It is further averred that she has no other vacant and suitable buildings of her own in her possession to start the said proposed business. But, several other vacant buildings are available in the locality to shift the business of the respondent from the tenanted premises. Therefore, she is entitled to get an order of eviction, under Section 11(3) of the Act. Further, it was alleged that the respondent has, in his possession many other buildings in the same city, which is absolutely reasonable for his requirement. He has in his possession another building in Cloth Bazar, very near to the petition schedule building and the said building was taken out from one Mr.Rafek Sait. That apart, he has another building at Broadway, Ernakulam and the said building was taken out from the Wakf Board. In the aforesaid buildings, the respondent has been conducting a cloth business. Further, it was alleged that the respondent has sub-let the portion of the petition schedule building to different persons on daily rent basis, without her consent. Thus, she is entitled to get an order of eviction under Sections
11(4)(i) and 11(4)(iii) of the Act.
3. The respondent filed objection contending that the need projected is not bona fide and it is a pretext for eviction only. He denied the allegation that he has in his possession many other buildings in the same city and those buildings are reasonably sufficient for his business purpose. According to him, he is depending mainly on the income derived from the business in the petition schedule building and no other buildings are available in the locality to shift his business from the tenanted premises. With the aforesaid averments, he prayed for dismissal of the Rent Control Petition.
4. On the rival pleadings, both parties adduced evidence and after considering the evidence on record, the courts below concurrently found that the need projected in the petition is bona fide and the respondent is not entitled to get protection under the 2nd proviso and further found that the respondent has in his possession another building, which is reasonably sufficient for his requirement in the same city and thereby granted an order of eviction under Sections
11(3) and 11(4)(iii) of the Act.
5. Heard Shri.R.D.Shenoy, the learned Senior Counsel for the respondent/ tenant and Shri. Premachandra Prabhu, the learned counsel for the petitioner/ landlor
