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2014 DIGILAW 584 (KER)

Sarangadharan v. Ullattuthodi Mini Sundersh

2014-07-23

ANIL K.NARENDRAN, K.T.SANKARAN

body2014
Judgment : K.T. Sankaran. J. 1. One of the tenants challenges the concurrent findings of the Rent Control Court and the Rent Control Appellate Authority under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act'). Respondents 1 to 3 in the Revision filed R.C.P.No.77 of 2009 on the file of the Additional Rent Control Court (Additional Munsiff II), Kozhikode, against the revision petitioner and others under Section 11(3) of the Act. The Rent Control Court allowed the Rent Control Petition. On appeal by respondents 1, 5 and 6 in the Rent Control Petition, the Appellate Authority confirmed the order of the Rent Control Court. The revision petitioner, who is respondent No.1 in the Rent Control Petition, is aggrieved by the order and judgment passed by the authorities below. 2. The petition schedule building was let out to Sankaran Vydiar, the father of the revision petitioner, on a monthly rent of 25/- in the year 1965. The rent was subsequently enhanced to ? 650/- per month. The building is situated in Beypore, Kozhikode. The tenants are conducting a match factory in the petition schedule building. According to the landlords, the petition schedule building and the adjacent land having an extent of 15.75 cents is bona fide required for petitioners 1 and 2 in the Rent Control Petition for running a horticultural nursery. The tenants disputed the bona fide need. They contended that Sankaran Vydiar formed a partnership with his children, who are respondents 1 to 3 in the Rent Control Petition, and continued to run the match factory. After the death of Sankaran Vydiar, the first respondent in the Rent Control Petition (revision petitioner) is conducting the business. It was also contended by the tenants that the landlords are rich and affluent persons, that they have got several other lands and buildings and that the Rent Control Petition is filed as a ruse to evict the tenants. The tenants also claimed the protection of the second proviso to Section 11(3) of the Act contending that respondents 1 to 3 in the Rent Control Revision are depending for their livelihood mainly on the income derived from the business conducted in the petition schedule building and that there are no other suitable buildings available in the locality to accommodate the said business. 3. 3. The Rent Control Court, on a detailed consideration of the pleadings as well as the oral and documentary evidence in the case, held that the bona fide need put forward by the landlords is genuine. The tenants raised a contention that petitioners 1 and 2 in the Rent Control Petition, who expressed their desire to conduct a horticultural nursery, are residing far away in Bangalore, Mumbai and in a gulf country. However, the revision petitioner, while giving evidence, has admitted that they are residing in Kozhikode itself. The tenants also raised a contention that for running a horticultural nursery, vacant land is sufficient and that no building is required. From the evidence of PW1, the first petitioner in the Rent Control Petition, it has come out that building is required for growing certain plants like Mushrooms, Orchids etc. and that the building is required for keeping manures and tools as well as for having an office. The Rent Control Court accepted the case put forward by the landlords and held that the need put forward by the landlords is genuine and that there is nothing wrong in conducting a horticultural nursery in the land as well as in the building situated therein. The Appellate Authority on a re-appraisal of the evidence on record confirmed the finding rendered by the Rent Control Court in this regard. 4. The tenants claimed the benefit of the second proviso to Section 11(3) of the Act. It is well settled that the burden of proof is on the tenants to establish the twin ingredients of the second proviso to Section 11(3) and the tenants have to prove that they are depending for their livelihood mainly on the income derived from the business conducted in the building sought to be evicted and that there are no other suitable buildings available in the locality to accommodate their business. The Rent Control Court found that it has come out in evidence that the first respondent in the Rent Control Petition alone is utilising the income from the business and that he has not produced accounts of his income though he produced the Profit and Loss Account and the licence etc. to run the match factory. It was also held that the tenants failed to prove the second limb of the second proviso to Section 11(3) of the Act. to run the match factory. It was also held that the tenants failed to prove the second limb of the second proviso to Section 11(3) of the Act. The finding of the Rent Control Court in this regard was confirmed by the Appellate Authority. The tenants also raised a contention that the landlords own and possess several other vacant plots and buildings in which they could start the proposed business. The Rent Control Court found that the landlords own a flat in Kozhikode and it is in their occupation. It was also held that a flat is not suitable for running a horticultural nursery. The Rent Control Court found that the landlords are having vacant plots of land but they do not have plots of land with buildings and the petition schedule property is the only such plot where there is vacant land as well as building, suitable for running a horticultural nursery. 5. The learned counsel for the petitioner submitted that the first proviso to Section 11(3) of the Act is attracted, in the facts and circumstances of the case. The first proviso to Section 11(3) of the Act reads as follows: "11(3) ……. Provided that the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular case it will be just and proper to do so:" The Kerala Buildings (Lease and Rent Control) Act would apply only in respect of buildings. "Building" is defined in Section 2(1) of the Act as follows: "2. "Building" is defined in Section 2(1) of the Act as follows: "2. Definitions.-- In this Act, unless the context otherwise requires,- (1) "building" means any building or hut or part of a building or hut, let or to be let separately for residential or non residential purposes and includes - (a) the garden, grounds, wells, tanks and structures, if any, appurtenant to such building, hut, or part of such building or hut, and let or to be let along with such building or hut; (b) any furniture supplied by the landlord for use in such building or hut or part of a building or hut, but does not include a room in a hotel or boarding-house; (c) any fittings or machinery belonging to the landlord, affixed to or installed in such building, or part of such building, and intended to be used by the tenant for or in connection with the purpose for which such building or part of such building is let or to be let." 6. The landlord of a land alone without any building thereon, is not entitled to file a Rent Control Petition to evict his tenant. A petition under Section 11 is maintainable only if there is a building and the building was let out to the tenant. The definition of building takes in garden, grounds, wells, tanks and structures appurtenant to the building. A Rent Control Petition seeking eviction of a tenant from a building and appurtenant land is maintainable. The first proviso to Section 11 (3) of the Act would apply only if the landlord has another building of his own in his possession in the same city, town or village. The first proviso will not apply if the landlord has vacant plots in his possession with no building thereon. Ownership and possession of vacant lands by the landlord would not disentitle him from claiming eviction of the tenant from a building. The tenant cannot dictate that the landlord who has another land of his own in his possession can very well construct a building thereon. That is not what is contemplated by the first proviso to Section 11(3) of the Act. Even the first proviso is further restricted in its application if the landlord proves special reasons. The tenant cannot dictate that the landlord who has another land of his own in his possession can very well construct a building thereon. That is not what is contemplated by the first proviso to Section 11(3) of the Act. Even the first proviso is further restricted in its application if the landlord proves special reasons. Ownership and possession by the landlord of vacant plots of lands, can under no circumstance be a ground to defeat his right to get vacant possession of a building let out to the tenant. 7. The authorities below concurrently held that the need put forward by the landlords is genuine, that the tenants are not entitled to get the benefit of the first proviso or the second proviso to Section 11(3) of the Act and that the landlords are entitled to get an order of eviction. Those findings were rendered on the basis of the pleadings and evidence on record and the findings are findings of fact. The revisional court exercising jurisdiction under Section 20 of the Act would not be justified in interfering with the findings of fact rendered by the authorities below unless there is any illegality, irregularity or impropriety in the proceedings of the authorities below. In the present case, there is no such illegality, irregularity or impropriety warranting interference under Section 20 of the Act. 8. The Rent Control Revision is, accordingly, dismissed. The tenants sought two years' time to vacate the petition schedule building. It is stated that the revision petitioner has two daughters and their marriage is to be conducted, for which, a reasonable time is required. The learned counsel appearing for the landlords submitted that the tenants are in occupation of the building since 1965 and they are paying a meagre rent. It is pointed out that from the description of the building it is clear that the rent is quite insufficient. The learned counsel also submitted that only three months' time may be granted. The learned counsel appearing for the landlords submitted that the tenants are in occupation of the building since 1965 and they are paying a meagre rent. It is pointed out that from the description of the building it is clear that the rent is quite insufficient. The learned counsel also submitted that only three months' time may be granted. Taking into account the facts and circumstances of the case and also the fact that thirteen employees are working in the match factory run by the revision petitioner, we grant time upto 31.5.2015 to the tenants to vacate the petition schedule building on the following conditions: (i) The tenants shall file an affidavit before the Rent Control Court within one month from today, either jointly or severally, unconditionally undertaking to vacate the petition schedule building on or before 31.5.2015. (ii) The tenants shall deposit the entire arrears of rent, if any, before the Rent Control Court within one month from today. (iii) The tenants shall pay rent at the rate of Rs.3,000/-per month from August 2014 onwards till they vacate the petition schedule building and such monthly rent shall be deposited before the Rent Control Court on or before 10th of the succeeding months. (iv) If the tenants comply with the above conditions, the order of eviction shall not be executed till 31.5.2015 and the Execution Petition shall stand stayed till then. (v) If the tenants do not comply with any of the conditions mentioned above, the landlords would be entitled to get the order of eviction executed forthwith.