BY AD v. V.V.SURENDRAN

Judgment

1. The present petition is directed against the concurrent findings of fact of the Rent Controller and lower Appellate Court dated 17.03.2016 and 21.07.2020 whereby the eviction of the petitioner - tenant on the ground of bonafide necessity has been upheld.

2. The rent petition was filed on the premise that schedule building belong to the respondent-landlord which was entrusted to the predecessor-in-interest of the petitioners–tenants and rent upto 05.12.1987 was paid but thereafter had been in arrears of rent which accumulated to Rs.32,235/- (Rupees thirty two thousand two hundred thirty five only). The scheduled building was required to accommodate the employees of hotel ‘Whitelines’ run by the respondent-landlord’s children Riyas, Rishan and Fathima Rashin for accommodating sixteen(16) employees of the restaurant, ‘Bits and Bites’ which the aforementioned RCREV. NO. 226 OF 2020 4 children of the respondent propose to start. In this regard a registered notice was sent but of no avail.

3. In response to the receipt of the notice, all the respondents were proceeded ex parte except respondent No.2-petitioner herein. In the counter statement all the allegations were denied.

4. Learned Rent Controller on the basis of the

pleadings of the parties framed the following issues:

1.Whether the petitioner is entitled to get an order of eviction under Section 11(2)(b) of the Kerala Building (Lease and Rent Control) Act ?

2.Whether the petitioner is entitled to get an order of eviction under 11(3) of the Act ?

3.Relief and costs ?

5. In support of the respective stands parties brought on record following oral and documentary evidence: Petitioner's witness: PW1 M.Mohammed Haji PW2 Rishal Petitioner's Exhibits: A1

12.02.84 :Certified copy of partition deed RCREV. NO. 226 OF 2020 5 A2(1) A2(2) A2(3)

19.01.12 :Copy of lawyer notice -do- -do- : Postal receipt :Postal acknowledgment card A3 A4 A5 A6 A7 A8 A9 A10 A11 A12 A13 A14

22.02.12 : Reply notice

03.02.12 : Land tax receipt

12.04.82 : Death Certificate of Komukutty Haji

23.10.08 : True copy of consent letter

19.09.12 :Copy of petition before Sub Inspector of Police Kasaba

20.09.12 :Copy of written statement in O.S.460/12

16.01.12 :Copy of licence renewal application

25.02.13 :-do- -do-

01.09.11 :Partnership Deed

12.07.05 : Licence issued by Corporation, Kozhikode

15.09.04 : Registration Certificate

03.02.10 : Receipt issued by Corporation, Kozhikode. A15

03.02.10 : -do- -do- A16(1)

07.12.11 : Voucher A16(2)

05.01.12 : Voucher A16(3)

07.01.12 : Voucher A16(4)

07.01.12 : Voucher A16(5)

07.01.12 : Voucher A16(6)

07.01.12 : Voucher A16(7)

09.01.12 : Voucher RCREV. NO. 226 OF 2020 6 A16(8)

09.01.12 :Voucher A16(9)

09.01.12 : Voucher A16(10)

08.01.12 : Voucher A17 A18 A19 --- :Copy of income tax return for the year 2011-12

01.07.11 :Balance sheet of Hotel White Lines

23.09.11 :Audit report of Hotel White Lines Respondents' Witness: RW1 M.Balakrishnan Respondents' Exhibits: B1(1) B1(2) B1(3) B1(4) B1(5) B1(6) B1(7) B1(8) B1(9)

06.01.78 : Rent receipt

06.11.80 : Rent receipt

12.05.78 : Rent receipt

06.11.80 : Rent receipt

13.03.79 : Rent receipt

11.07.78 : Rent receipt

11.08.78 : Rent receipt

13.06.78 : Rent receipt

26.11.78 : Rent receipt B1(10)

12.04.78 : Rent receipt B1(11)

10.02.78 : Rent receipt B1(12)

01.02.79 : Rent receipt B1(13)

01.09.79 : Rent receipt B1(14)

01.09.79 : Rent receipt B1(15)

03.11.79 : Rent receipt B1(16)

03.11.79 : Rent receipt RCREV. NO. 226 OF 2020 7 B1(17)

21.12.79 : Rent receipt B1(18)

21.12.79 : Rent receipt B1(19)

28.12.78 : Rent receipt B1 (20)

16.10.78 : Rent receipt B1(21)

21.04.79 : Rent receipt B1 (22)

28.04.80 : Rent receipt B1 (23)

28.04.80 : Rent receipt B1(24)

09.10.80 : Rent receipt B1 (25)

09.10.80 : Rent receipt B1(26)

04.06.79 : Rent receipt B1(27)

11.09.78 : Rent receipt B1(28)

14.07.80 : Rent receipt B1(29)

14.07.80 : Rent receipt B1(30)

11.03.81 : Rent receipt B1(31)

04.06.79 : Rent receipt B1(32)

03.03.80 : Rent receipt B1(33)

02.06.81 : Rent receipt B1(34)

03.02.81 : Rent receipt B1(35)

24.09.81 : Rent receipt B1(36)

16.09.81 : Rent receipt B1(37)

16.09.81 : Rent receipt B1(38)

03.02.81 : Rent receipt B1(39)

03.02.81 : Rent receipt B1(40)

28.10.81 : Rent receipt B1(41)

02.06.81 : Rent receipt B1(42)

06.06 : Rent receipt B1(43) --- : Rent receipt RCREV. NO. 226 OF 2020 8 B1(44)

20.03.82 : Rent receipt B1(45)

06.03.82 : Rent receipt B1(46)

06.03.82 : Rent receipt B1(47) B1(48) B1(49) B1(50) B1(51) B1(52) B2(1) B2(2) B2(3) B2(4) B2(5) B2(6) B2(7) B2(8) B2(9) --- --- --- --- --- --- : Rent receipt : Rent receipt : Rent receipt : Rent receipt : Rent receipt : Rent receipt

18.08.15 : Building tax receipt

18.08.15 : Building tax receipt

23.10.13 : Building tax receipt

12.01.12 : Building tax receipt

26.08.08 : Building tax receipt

23.03.06 : Building tax receipt

15.09.10 : Building tax receipt

30.03.04 : Building tax receipt

10.01.08 : Copy of building tax receipt B2(10)

27.12.97 : Building tax receipt B2(11)

10.03.97 : Building tax receipt B2(12)

21.03.99 : Building tax receipt B2(13) 01:06.98 : Building tax receipt B2(14)

09.10.00 : Building tax receipt B2(15)

03.03.01 : Building tax receipt B2(16)

18.12.99 : Building tax receipt B2(17)

09.05.94 : Building tax receipt B2(18)

31.03.03 : Building tax receipt RCREV. NO. 226 OF 2020 9 B2(19)

19.10.09 : Building tax receipt B2(20)

23.10.08 : Building tax receipt B2(21)

10.01.08 : Building tax receipt B3(1)

18.02.94 : Demand notice by Corporation of Kozhikode. B3(2) B3(3) B4(1) B4(2) B5 B6 B7 B8 B9

11.03.97 :

15.01.93 : : --- --- -do- -do- -do- : Receipt issued by Village Officer, Valayanad

14.08.12 : Certified copy of Plaint in O.S.460/12 of Sub Court, Kozhikode.

01.01.13 : Notice by Corporation of Kozhikode

26.08.08 : Copy of Certificate issued by corporation of Kozhikode.

07.12.06 : Certified copy of sale agreement

15.12.08 : Copy of meter card of Kerala Water Authority B10 --- : Demand notice by Corporation of Kozhikode.

6. On examination of both oral and documentary evidence, eviction from the schedule property was ordered under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act and also on the grounds of arrears of rent under sub-clause (b) of sub-section (2) of Section 11 of the RCREV. NO. 226 OF 2020 10 Act. During the pendency of RCR No.145/2016, petitioner – tenant submitted two(2) applications I.A.No.8/19 for discovery and inspection and I.A.No.1825/2017 for appointment of the Commission. Both the applications were allowed. Respondent – landlord in response to the application did not give the documents as sought to be discovered. Advocate Commissioner appointed on the request of the petitioner- tenant inspected the premises on

26.12.2017 at 11.a.m. preceded by a legal notice to the parties dated 18.12.2017. The intention behind the tenant was that during the pendency of the appeal, on account of occurrence of subsequent events, the ground of bonafide need as available in 2012 no longer subsisted. The Advocate Commissioner gave a detailed report. Appellate Authority noticing all the facts dismissed the appeal.

7. Mr.P.A.Harish, learned counsel appearing on behalf of the petitioner-tenant while laying challenge to the orders of the Rent Controller and Appellate Court raised the following submissions: RCREV. NO. 226 OF 2020 11 I). The report of the Advocate Commissioner dated 03.01.2018 ex facie reveal that the business of hotel and lodging carried by the respondent- landlord and the employees working therein no longer continue to work evidenced from lodging register and much less the rooms were not occupied. No doubt the commissioner had noted that there were about 6 to 7 employees on the rolls and the rate of salary was also specified. The other grounds with regard to the agreement to sell was not pressed, for, it has not been found in his favour. However, the eviction on the ground of arrears of rent no longer subsisted in view of the clearance of all the arrears. II) Learned Appellate Authority ought to have drawn adverse inference as provided under Section 118(g) of the Indian Evidence Act, 1872, in the absence of any categoric reply or production of documents with regard to the business either being RCREV. NO. 226 OF 2020 12 carried out or otherwise.

8. On the other hand, learned counsel appearing on behalf of landlord countered the arguments and submitted that there is no illegality and perversity in the concurrent finding of the fact and the tenant cannot dictate the terms to the landlord to run the business in the fashion and the manner. The employees, as per the report of the Advocate Commissioner had still been on the rolls. All taxes consisting of luxury tax, building tax etc. have been paid upto date.

9. We have heard the learned counsel for the parties and appraised the paper book.

10. No doubt the report of the Advocate Commissioner appointed during the pendency of the appeal before the Lower Appellate Authority reflected that almost 22 to 25 rooms of the hotel were not in occupation but the luxury tax and other tax had already been paid and there were sixteen(16) employees. Paragraphs 9 to 12 and 22(1) to 22(4) of the report reads as under:

9. Copy of Partnership deed Dated 01.09.2011 (Mr. Muhammed Haji told me that, the original deed was RCREV. NO. 226 OF 2020 13 produced before the this Hon'ble

10. Computer printout of Online application No:231166, Form B1 Application for Registration of year 2018 of M/s Hotel White Lines. In the second page containing the of 7 employees named1)PRaveen kumar, 2) Agil George, 3) Muhammed Kutty, 4) SreeKumar, 5) Muhammed Raoof. K.M, 6)Sujith Debbarma and 7) Viswajith Debbarma were written.

11. Chelan Form with No:KL00750726720M18M Dated

03.11.2017 in the name of M.Muhammed Haji, of paying Rs 200/- (Original)

12. Master Roll Book of M/s Hotel White Lines of period from 2016 to 2017 (Original) This book contain attendance details from 01.04.2016 to 25.12.2017. On 25.01.2017 this book was seen by Asst. Labour Officer, Kozhikode. In the month of December 2017 this book had the name of following employees 1.Praveen Kumar, 2.Agil George, 3.Muhammed Kutty, 4. Rajesh, 5. Sreekumar and 6. Viswajith Debbarma

22. Purchase Bills-Tax Invoice a) Bill No: CKW/729, of a amount Rs 1,16,466.00 Dated 23 Nov 2017 b) Bill No:CKW/728, of amount 1.02.211.00 Dated 23 Nov 2017 The above mentioned documents were showed to me by Mr. Muhammed Haji during my inspection and he told me that he had produced other documents before this hon'ble court. Mr. Muhammed Haji told me that he is employing permanent workers and 4 Casual workers, they were:- Permanent workers 1) Praveen Kumar aged 32 years, Receptionist, working from 2007 onwards. He showed me his driving license for RCREV. NO. 226 OF 2020 14 verification 2) Agil George, S/o. George, aged 27 years, Receptionist, working from 2011 onwards. He showed me his Aadhar Card 3) Muhammed Kutty was on leave 4) Sreekumar, Receptionist, working from 2010onwards. He showed me his Aadhar card. 5) Muhammed Raoof.K.M., aged 21 years, Receptionist, working from last 3 months. He showed me his Aadhar card. 6) Sujith Debbarma, S/o Debbarma aged 20 years, Cleaning work, working from last 2 years. He showed me his Aadhar card and I found him to be native of Tripura and stays in white lines hotel. 7) Viswajith Debbarma was also on leave. Casual Workers:- 1) Reman Debbarma, S/o Debbarma, aged 19 years, Cleaning work, showed me his Aadhar card and I found him to be native of Tripura. He told me he stays in white lines 2) Pishan Chandra Debbarma, S/o Debbarma, aged 20 years, Room service, showed me his Aadhar card and I found him to be native of Tripura. He told he stays at King Fort Lodge, Kozhikode 3) Rakesh Debbarma, aged 19 years, Cleaning work, showed me his Aadhar card and I found him to be native of Tripura and stays in white lines hotel. 4) Surjit Debbarma, aged 18 years, Cleaning work showed me his Aadhar card and I found him to be native of Tripura and stays in online white lines hotel.

3. Mr. Muhammed Haji showed me Muster roll and wage register, online line registration application of workers of M/S RCREV. NO. 226 OF 2020 15 Hotel White Lines as stated above. He told me, most of the workers are from outside Kerala and work for short period so not benefits are given to the workers like ESI, Gratuity, Provident fund etc.,

4. The 3rd & 4th floor of White Lines Building were used by M/S Hotel White Lines, there are 22 rooms in the 4th floor for providing lodging facility, There are rooms starting from Room No: 402 to 424. In that, numbers 401, 413 & 420 were not given to room. Each room had attached bathroom. Each room was furnished with 2 single cot bed kept together, one television set, one dressing table, one small table, & one set of sofa. In that, some rooms had AC facility. He told me that in the 22 rooms 9 rooms were occupied by the guest. During my inspection no one was seen in the premises or veranda of the 4th floor and Praveen Kumar employee of M/s Hotel White Lines told me that, all the guests have gone for work. In the 3rd floor there are 23 rooms, starting from Room No: 301 to 324 In that, number 313 was not given to the room and there was a space for the room boys.

11. Non-occupation of the rooms of the hotel cannot be a ground of non-existence of the bonafide need which was available at the time when the petition was filed in

2012. Some months of the year are lean from business point of view owing to less foot fall, but for that owners of the hotel do not dispense with the service of the employees until RCREV. NO. 226 OF 2020 16 and unless there had been a perpetual downfall and no business. It is the prerogative of the landlord to use the building as per his desire and need. Payment of salary of the permanent and casual employees of the business concern mentioned in Ext.C1 report are the testimony that the employees were in employment and the premises in dispute was required for their boarding and lodging. All these factor have rightly been weighed in the mind of the Court below. We do not find any illegality and perversity. No ground for interference is made out. Revision petition is dismissed. Two months time is granted to the tenant to vacate the residential house. Sd/- AMIT RAWAL JUDGE Sd/- EASWARAN S. JUDGE