IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 3RD AUGUST 2010 / 12TH SRAVANA 1932 RCRev..No. 17 of 2010() ----------------------- RCA.25/2009 of RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE RCP.48/2006 of RENT CONTROL COURT, KOZHIKODE-I .................... REVISION PETITIONER/APPELLANT /PETITIONER ------------------------------------------------------------- RATNAVALLY, AGED 42, D/O. APPUKUTTY NAIRA, W/O. VIJAYAN, CHITTADIPOYIL HOUS, ERAVANOOR AMSOM AND DESOM, KOZHIKODE TALUK. BY ADV. SRI.SRINATH GIRISH SRI.E.NARAYANAN RESPONDENT/RESPONDENT/RESPONDENT: --------------- B.P.ANOL KUMAR, AGED 42, S/O. VELAYUDHAN, BHAGHAVATHI PARAMBATH HOUSE, AUTOCARE CENTRE, P.O.CHELANNUR, KOZHIKODE. ADV. SRI.MANJERI SUNDER RAJ THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 03/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ. ----------------------------------------------- RCR. No. 17 of 2010 ----------------------------------------------- Dated this the 3rd day of August, 2010 O R D E R Pius C.Kuriakose, J. The landlord is in revision. The Appellate Authority under the impugned judgment found, reversing the finding of the Rent Control Court that the need projected by the landlord under sub-section (3) of Section 11 is bona fide. Nevertheless, the Appellate Authority did not order eviction taking the view that the tenant was entitled to the protection of the second proviso to sub-section (3). Having gone through the impugned judgment of the Appellate Authority we are of the view that the finding of the Appellate Authority, that the tenant satisfies even the second limb of the second proviso, is quite unsatisfactory. According to us, binding judicial precedents governing the issue including the judgment of a Full Bench of this Court in Francis v. Sreedevi Varassiar, 2003(2) KLT 230(F.B) were not kept in mind by RCR. 17/2010 -2- the learned District Judge while arriving at such a finding. The tenant will become entitled to the protection of the second proviso only if it is shown that both the ingredients of the second proviso are in his favour. The second ingredient is that other suitable buildings are not available in the locality to the tenant for shifting his business. 2. It is in paragraph 15 of the counter statement filed to the rent control petition that the tenant apparently claimed the protection of the second proviso to sub-section 93). According to us, the protection of the second proviso has not been claimed clearly and specifically. What is contended in the context of the second limb of the second proviso is as follows: “He has no other -- -- buildings suitable to carry on the said business.” The issue arising under second limb of the second proviso is whether other suitable buildings are available in the locality for the tenant to carry on his trade or business. We feel RCR. 17/2010 -3- that the question whether the second ingredient of the second proviso is satisfied in this case ought to be reconsidered by the Appellate Authority. The Appellate Authority has under the statutory scheme (see Sections 18 (3), 23(1) and Rule 16(2) of the Kerala Buildings (Lease and Rent Control) Rules) co-equal powers with the Rent Control Court in the matter of conduct of enquiry. Even though the burden is on the tenant to prove that he satisfies the second ingredient of the second proviso to sub-section (3) of Section 11 nothing prevents the landlord from adducing evidence. The positive aspect of other vacant buildings being available in the locality, in our view, can be proved by producing certified extract of the property tax assessment register maintained by the locality authority. 3. We find elements of genuineness in the grievance voided by the revision petitioner's counsel that the current rent rate of Rs.5000/- which is being paid by the respondent RCR. 17/2010 -4- is too inadequate considering the extent of the property and the commercial importance of the locality where the property is situated. We re-fix the rent payable by the respondent tentatively at Rs.7500/- with effect from 1st September, 2010. It is open to either party, if aggrieved, to move the Rent Control Court for fixation of fair rent by filing proper petition under Section 5. 4. Result of the above discussion is as follows: The order of the Rent Control Court and the judgment of the Appellate Authority are set aside. RCA. No. 25 of 2009n is remanded to the Rent Control Appellate Authority, Kozhikode. That authority is directed to reconsider the tenant's eligibility for protection of the second proviso by holding further enquiries on the question as to whether the tenant has satisfied the second ingredient of the second proviso. Both sides should be permitted to adduce whatever further evidence they want to. Rent of the RCR. 17/2010 -5- building payable by the respondent is fixed with effect from 1st September, 2010 at Rs.7500/- per mensem till fair rent is fixed. The respondent shall pay at the above rate. The parties will appear before the Rent Control Appellate Authority on 2-9-2010. The learned Appellate Authority will complete the enquiry and pass revised judgment at the earliest, at any rate, within three months thereafter. (PIUS C.KURIAKOSE, JUDGE) (C.K.ABDUL REHIM, JUDGE) ksv/- RCR. 17/2010 -6-