In Eviction Proceedings, Entries In Property Tax Register Of Local Authority Cannot Be Conclusive Proof Of Landlord's Occupation Of  Vacant Building : Kerala HC Full Bench[Read Judgment]

A Full Bench of High Court of Kerala has held that entries in property tax register or building tax register of local authority cannot be taken as conclusive proof of occupation of vacant building in eviction proceedings under the Kerala Buildings (Lease and Rent Control) Act, 1965

When a landlord projects his bona fide need of rented premises to seek eviction of tenant, the possession of an alternate vacant building by landlord assumes relevance as the Rent Control Court can decline eviction on this ground. The issue before the Full Bench of Justices V Chitambaresh, P B Suresh Kumar and Sathish Ninan was whether entries in property tax register or building tax registers of local authority could be used to establish occupancy of vacant building by landlord in eviction proceedings, in view of Section 26 of the Act.

Section 26 of the Act mandates local authorities to issue certified copies of extracts of such registers and states that "such certified copy shall be received as evidence of facts stated therein in proceedings under the Act".

The Division Bench decisions in Abdul Kader v. George Joseph and Another [2009 (1) KLT 205] held that certified copies of extracts of property tax or building tax assessment register maintained by the local authority obtained under Section 26 is evidence of the vacancy position of a building. Another DB decision in Nabeesa Abdul Khader v. Suresh Kurian [2009(1) KLT 1020] held that a presumption can be drawn based on an entry in a property tax or building tax assessment register relating to occupancy or vacancy of the building and it is for the opposite party to dislodge the said presumption.

On the other hand, a DB ruled in Cheruvalath Krishnadasan v. Addissery Raghavan [2017 (4) KHC 894] held that hat the entries in the property tax assessment register cannot be taken as conclusive proof of the vacancy position of a building. In view of the seemingly conflicting views expressed in these decisions, reference was made to the Full Bench.

Writing the judgment for the Full Bench, Justice P B Suresh Kumar traced the original intent and implication of Section 26. It was found that certified copies of extracts were issued under Section 26 for the purpose of fixation of fair rent under Section 5 of the Act. Because, assessment of fair rent had connection with the property tax assessed on the building. Hence, the certified copies of extracts were intended to be used for purposes of assessment of fair rent. The Act did not intend such copies to be used as evidence in eviction proceedings. The last sentence in Section 26 that "such certified copy shall be received as evidence of facts stated therein in proceedings under the Act" is clarificatory in nature, as certified copies are even otherwise receivable in evidence under Section 77 of the Evidence Act.

"The scheme of the Act does not indicate that the legislature intended the parties to a proceeding for eviction under the Act to prove the vacancy or occupancy of a building by producing certified extracts of the property tax or the building tax assessment books of the local authority. The said certified extracts can at best be a piece of evidence and the occupancy of the building needs to be established by the parties by other corroborative evidence", held the judgment.

The judgment in Abdul Khader,which held that  the property tax or building tax assessment register maintained by the local authority is evidence of the vacancy position of a building, was overruled. The judgment in Cheruvalath Krishnadasan, which held that the entries in the property tax assessment register cannot be taken as conclusive proof of the vacancy position of a building, was held to be "in order".

As regards the judgment in Naseeba Abdul Khader, which held that presumption of possession of vacant building can be drawn from Section 26 extracts, the Full Bench held that such a presumption cannot be made. It was held that presumption can be raised only in the manner contemplated under Secton 114(e) of the Evidence Act, which relates to presumption of official procedure being duly followed. The presumption cannot relate to occupancy of vacant building, clarified the Full Bench.