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PETITIONER: S.J. EBENEZER

       Vs.

RESPONDENT: VELAYUDHAN & ORS.

DATE OF JUDGMENT:       11/12/1997

BENCH: A.S. ANAND, K. VENKATASWAMI

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T K.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.

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

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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

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    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.

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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

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    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

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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.