IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 27TH APRIL 2010 / 7TH VAISAKHA 1932 RCRev..No. 439 of 2005(C) ------------------------------------- RCA.NO.49/1997 OF RENT CONTROL APPELLATE AUTHORITY (DISTRICT JUDGE, THALASSERY, RCP.NO.65/1996 OF RENT CONTROL COURT (PRL.MUNSIFF COURT).,KANNUR. .................... REVISION PETITIONER/APPELLANT/PETITIONER: ----------------------------------------------------------------------- PUTHANPURAYIL RAJAN, S/O.KANNAN, AGED 60 YEARS, RESIDING AT SHREYAS, NEAR PUZHATHI HOUSING COLONY, KANNUR -2. BY ADV. SRI.V.RAJAGOPAL. RESPONDENTS/RESPONDENTS/RESPONDENTS: ----------------------------------------------------------------------- KOTHERI DILEEP KUMAR, S/O.DAMODARAN, AGED 27 YEARS, RESIDING AT “KRISHNADAS”, AMBIKA ROAD, P.O. PALLIKUNNU, KANNUR 4. BY ADVS. SRI.A.MOHAMED MUSTAQUE, SRI.M.K.SUMOD. THIS RENT CONTROL REVISION BEEN FINALLY HEARD ON 07/08/2009, ALONG WITH R.C.REV. NOS. 440/2005, 441/2005 & 206/2009, THE COURT ON 27/04/2010 PASSED THE FOLLOWING: prv. PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------------------------------------------------------------------ R.C.R. NOS: 439, 440 & 441/05 and 206 OF 2009 ----------------------------------------------------------------------------------- Dated this the 27th April, 2010. O R D E R 'CR' SURENDRA MOHAN, J. The common question that arises for consideration in these revisions is:- “Whether the availability of another vacant plot of land in the ownership and possession of the landlord would attract the prohibition or the bar contained in the first proviso to Section 11(3) of the Kerala Buildings (Lease and Rent control) Act, 1965?” 2. RCR Nos: 439/05, 440/05 & 441/2005 arises from a common order of the Rent Control Appellate Authority, Thalassery while RCR 206/2009 is filed against the judgment of the Rent Control Appellate Authority, Thalassery in rent control proceedings that relate to a totally different premises where the parties are also different. However, all the revisions are considered together for the reason that, the question of law that has been raised for consideration is common to all the revisions. For the sake of convenience, the parties are referred to as the landlord and tenant. 3. RCR 439/2005, 440/2005 & 441/2005 are three revisions RCR Nos: 439,440,441/05 & 206/09 2 filed by the landlord against concurrent orders passed by the Rent Control Court and confirmed by the Rent Control Appellate Authority declining orders of eviction under Section 11(3) of the Kerala Buildings (Lease & Rent Control) Act, 1965, hereinafter referred to as the 'Act' for short. The landlord filed three Rent Control petitions RCP Nos: 63/96, 65/96 and 67/96 against three different tenants seeking eviction on the ground of bonafide need under Section 11(3) of the Act. The buildings are adjacent to each other and are located in the same plot of land, where the tenants are engaged in different businesses. According to the landlord, the building originally belonged to Vinodhini, who is no more. During her life time itself, she had issued a notice to the tenant in RCP 63/96 alleging that she wanted to demolish the building for the purpose of conducting repairs of a lorry and autorickshaw that belonged to the petitioner. After her death the title to the property devolved on the petitioner. The tenants attorned to him and thus, he became landlord in respect of the building. It is the case of the petitioner that his wife had passed away following a heart operation at Delhi for which he had to incur considerable expenses. The petitioner had to sell his lorry and also had to incur other liabilities. According to the landlord, he wants to start a spare parts shop in the building and also wants to provide a space for parking and for repairing autorickshaws. Therefore, he wants to demolish the RCR Nos: 439,440,441/05 & 206/09 3 tenanted premises and to put up a building suitable for his own bonafide need. 4. The tenants disputed the need that was put forward by the landlord, contending that he had not acquired title to the building since the partition arrangement to which he traced his title, had been set aside. However, the main contention of the tenants have been that the landlord could very well make the proposed construction in the land that was remaining vacant and appurtenant to the tenanted premises. The said vacant land according to the tenants was sufficient for making any construction that was necessary for the proposed business of the landlord. 5. The Rent Control Court tried all the three petitions on the above pleadings, treating RCP No: 63/96 as the leading case. The evidence in the case consists of Exts. A1 to A17 documents and the oral evidence of the landlord as P.W.1 on the side of the petitioner and Exts.B1 to B7 documents and the oral testimonies of R.Ws 1 to 3 on the side of the respondents-tenants. R.Ws 1 to 3 are the tenants in the Rent Control Petitions. 6. The Trial Court on an evaluation of the evidence found that the property had roads on its northern and eastern sides. According to the Trial Court, it was not necessary for the spare parts shop and the garage to be under the same roof. If the landlord wanted, he could locate the buildings that were necessary RCR Nos: 439,440,441/05 & 206/09 4 for satisfying his need, on the southern side of the existing building. It was therefore, found that the need alleged by the landlord was only an irrational desire. In the above view of the matter, all the three Rent Control Petitions were dismissed. 7. The landlord challenged the order of the Rent Control Court before the Rent Control Appellate Authority, Thalasserry by filing RCA Nos: 48/97, 49/97 and 50/97 respectively. On a re- appraisal of the evidence on record, in the light of the rival contentions, the Appellate Authority concurred with the view of the Rent Control Court. According to the Appellate Authority, the need of the landlord could be satisfied by utilising the vacant space that was not occupied by the tenanted premises. Therefore, if the landlord's need were bonafide, he could have satisfied his need by utilising the said vacant land. In view of the above, his claim that he wanted to demolish the tenanted premises lacked bonafides and was therefore, liable to be rejected. The landlord has filed the above three revisions challenging the concurrent findings of the authorities below. 8. According to Mr. G. Mohan, counsel for the landlord, the authorities below have gone wrong in disallowing the claim for eviction put forward by the landlord. According to him, the landlord was the best judge of his need. Therefore, it was open to him to decide how best he should utilise the property that was RCR Nos: 439,440,441/05 & 206/09 5 owned by him. The tenants had no right to dictate to the landlord regarding the manner in which he should satisfy his need. According to the counsel, both the authorities below seriously erred in not addressing the proper question that arose for consideration viz., whether the need that was put forward was bonafide or vitiated in any manner. It is contended that there is no evidence or material on record to warrant a conclusion that the need of the landlord lacked bonafides. Though it is true that the plot in question had road frontage on two sides, it was open to the landlord to decide, which one of the frontage of his property was the best suited for his business. Therefore, the authorities below erred in finding fault with him for not having utilised the frontage of the other road that was available to him. 9. Mr. Mohammed Mustaque, counsel for the tenants contended on the other hand that since there was no dispute that the rest of the land remaining unoccupied by the tenanted premises was also having sufficient road frontage, the need of the landlord could be satisfied by utilising the said portion of the land, which was admittedly in his possession. In view of the fact that the said portion of land was also suitable for satisfying the proposed need, this was a case in which the landlord had to explain with the support of special reasons, as to why his need could not be satisfied by utilising the vacant portion in his possession. It is also RCR Nos: 439,440,441/05 & 206/09 6 contended that the first proviso to Section 11(3) of the Act required the landlord to plead and prove such special reasons, before he could claim eviction of the tenant under Section 11(3). More or less identical contentions are advanced by Mr. Cibi Thomas who appears for the tenant in RCR 441/2005. On the above contentions, the counsel for the tenants prayed for dismissal of the rent control petitions. 10. Ext. A2 is a building permit issued by the Cannanore Municipality on 5.7.1994. The permit number is B.A.233/94. An approved plan of the proposed construction also accompanies Ext.A2 building permit. It can be seen from the approved plan that the plot on which the tenanted premises is situate is an irregular shaped plot. The shop enjoys frontage of the jail road on one side and a by-road on the other side. It is by utilising the frontage of the jail road that the proposed construction has been planned. Sanction has been accorded for the construction in accordance with the approved plan on 5.7.1994, as noticed above. The sanction further shows that the same has been issued subject to the condition that the existing building should be demolished before commencement of the proposed construction, as shown in the approved plan. The frontage elevation as well as the other details are also shown in Ext.A2 plan. Ext. A2 series clearly show the nature of the construction that is proposed. The landlord has been RCR Nos: 439,440,441/05 & 206/09 7 examined as P.W.1. He has denied the suggestion that the proposed building could be constructed without demolishing the existing petition schedule building. He has further deposed that because the property is in a triangular shape, 10 ft. space has to be left from the road both on the eastern and northern sides. He has further deposed that he had tried to get a plan for construction of the building without demolishing the existing building but the Engineer and the local authority had informed him that it was not possible to do so. He has also deposed that it was not possible for him to construct the proposed building without evicting the present tenants. 11. The approved plan and building permit produced and marked as Ext.A2 series clearly show that the landlord is intending to construct a new building after demolishing the tenanted premises. Though the tenants have contested the petitions vigorously, they have no case that the landlord has no intention of constructing the proposed building. Their only case is that the landlord could very well locate the proposed construction at another portion of the plot. Therefore the bonafides of the need put forth by the landlord is not disputed. The landlord has given an explanation as to why it is not possible for him to put up the proposed construction without demolishing the present building. The explanation has not been controverted by any evidence or RCR Nos: 439,440,441/05 & 206/09 8 material from the side of the tenants. At any rate, there are no grounds to ignore the building permit and approved plan evidenced by Ext. A2 series produced by the landlord. Neither the financial capacity of the landlord nor his capability to undertake and complete the construction is in dispute. Therefore, both the authorities below went wrong in finding that the need that was put forth by the landlord was not bonafide. 12. The authorities below went at a tangent and proceeded to consider whether the landlord could locate the construction proposed by him at another portion of the very same plot occupied by the tenanted premises. As already noticed, the tenants have not produced any evidence or other material to show that the proposed building could be located at another portion of the same plot. In fact, as already noticed, nothing has been brought out to discredit the version of the landlord that it was not possible to make the proposed construction without demolishing the tenanted building. In the above state of evidence, the finding of the authorities below that it was possible for the landlord to satisfy his need by utilising the vacant land that was available behind the building occupied by the tenants is unsupported by any evidence and is liable to be set aside. We do so. 13. Though all the tenants had claimed protection of the second proviso to Section 11(3), the Appellate Authority has not RCR Nos: 439,440,441/05 & 206/09 9 considered the above question at all. The Rent Control Court has also not considered the above question on the ground that the said question does not arise since the need itself had been found to be not bonafide. The result is that, both the authorities below have not entered any finding regarding the entitlement of the tenants or otherwise to the benefit of the second proviso to Section 11(3) of the Act. Since the need of the landlord has been found to be bonafide, the question regarding the benefit of the second proviso to Section 11(3) of the Act would become relevant and would require consideration on the merits. 14. RCR 206/2009 is a revision filed by the tenant in RCP 197/97 of the Rent Control Court, Kannur, challenging the concurrent orders of eviction passed against him. The landlady sought eviction of the tenant alleging that she needed the tenanted premises for the purpose of demolishing the same and for constructing a residential house for herself and her unmarried son. She is an old lady, 76 years of age, who has no house of her own. She is presently residing along with another son of hers, who is already married and living separately. Her daughter who has lost her husband has also to be supported by her. Therefore, she claimed that she wanted to demolish the tenanted building and to put up a residential house for herself. The need of the landlady was contested by the tenant by contending that the landlady had other RCR Nos: 439,440,441/05 & 206/09 10 vacant lands in her possession which could be utilised by her for constructing her house. It was further pointed out that the tenanted building occupied only about six cents of land. The remaining portion of the land which had a total extent of 13.5 cents could be utilised by the landlady for constructing her residential house. The tenant also claimed protection of the second proviso to Section 11(3) of the Act, alleging that he was depending on the income from the business carried on in the tenanted premises for his livelihood and that no suitable premises were available in the locality for him to shift his business. 15. The rent control petition was tried on the above pleadings. The evidence in the case consists of the oral evidence of the landlady as P.W.1 and Exts.A1 to A7 documents on the side of the landlord and the evidence of the tenant as R.W.1and Exts.B1 to B26 documents on the side of the tenant. Exts. C1, C1(a), C1(b) and C2 are marked as court exhibits. 16. After an elaborate consideration of the evidence on record, the Rent Control Court found that the landlady had established the bonafides of her need and, therefore, ordered eviction under Section 11(3) of the Act. The tenant was also found not entitled to the benefits of the second proviso to Section 11(3) of the Act. The tenant challenged the findings of the Rent Control Court before the Rent Control Appellate Authority, Thalasserry in RCR Nos: 439,440,441/05 & 206/09 11 RCA 65/2000. On a re-appraisal of the evidence on record, the Rent Control Court Appellate Authority has also confirmed the findings of the Rent Control Court. The above revision is filed challenging the said concurrent findings of the authorities below. 17. The counsel for the revision petitioner contended that both the authorities below had gone wrong in passing an order of eviction against the tenant. According to the counsel, the tenant is conducting an automobile workshop in the tenanted premises and the income from the said business is the main source of livelihood for himself and his family. It is further contended that there are also no suitable buildings available in the locality to shift the business. According to the counsel, the specialised requirements of conducting an automobile workshop made the buildings that are usually available in the locality unsuitable for the business of the tenant. Premises that are suitable for conducting an automobile workshop were not available in the locality. Further, the landlady already has other vacant land in her possession where she could conveniently construct her residential house. It is also contended that the tenanted building occupied only about 6 cents of the property having a total extent of 13.5 cents. The balance extent was remaining vacant and was available in the possession of the landlady. Therefore, the said vacant plot of land could be utilised by the landlady for constructing a residential house. The counsel RCR Nos: 439,440,441/05 & 206/09 12 for the tenant has gone on to submit that when the bonafide need was for the building site of the tenanted premises, the landlady had an obligation to plead and prove that she had no other vacant land in her possession suitable for the construction of a residential house. In the absence of any such pleadings or proof it is contended that the need put forward by itself was inadequate, especially in view of the first proviso to Section 11(3) of the Act. 18. We have heard Mr. Mohammed Mustaque who appears for the revision petitioner/tenant. We have also anxiously considered the contentions of the counsel. 19. The landlady in the present case is an old lady who wants to construct a residential house of her own after demolishing the tenanted building. She has no other house for her residence. Her son who is more than 40 years old is also residing with her. He wants to get married and to start a family life. It has also come out in evidence that the landlady's daughter who has lost her husband recently, also has no place to reside. The above facts are not disputed by the tenant. Therefore, it is clear that the need put forward by the landlady is genuine. No one can find fault with the landlady for wanting to construct a house of her own for the residence of herself and her son and daughter. The contention of the tenant is that the landlady could very well construct a house in the land remaining vacant behind the tenanted building. It is also RCR Nos: 439,440,441/05 & 206/09 13 contended that the landlady has other vacant plots of land where she could construct her house, if she wanted. Since this question has also been raised in the other three revisions that are being considered, we shall consider the said question of law at a later stage. It has already been found that the need of the landlady is bonafide. Therefore, the further question that requires consideration is whether the tenant is entitled to the protection of the second proviso to Section 11(3). It is in evidence that the tenant is conducting another business at a nearby place called Thottada. However, it is the case of the tenant that the said business is conducted in partnership with others. Ext.B6 is the said partnership deed. Which of the two businesses is the main source of income for his livelihood can be determined only on a perusal of the documents showing the income that is received from both the businesses. However, the tenant has not produced any document or evidence to show which of the two businesses is his main source of income. In the absence of any evidence to show that the income from the tenanted premises is the main source of income for the tenant, the requirement of the first limb of the second proviso to Section 11(3) remains unsatisfied. Though the tenant has contended that other suitable premises are not available in the locality for him to shift his business, there is no evidence to prove the said assertion. On the contrary, the Advocate Commissioner RCR Nos: 439,440,441/05 & 206/09 14 who was deputed from the Court to report regarding the availability of other suitable premises has reported that there were at least two other premises available and remaining vacant in the locality. When the availability of other buildings in the locality is established, the burden to prove that the said premises are not suitable for his purposes is very heavy upon the tenant. In the present case, the tenant has failed to adduce any evidence to show why the premises reported by the Advocate Commissioner are not suitable for his business. In view of the above, the authorities below were right in finding that the need of the landlady was bonafide and that the tenant was not entitled to the protection of the second proviso to Section 11(3) of the Act. We confirm the said findings of the authorities below. 20. With regard to the common question of law that has been raised in all these revisions, it is argued by Mr. K.Mohammed Mustaque, counsel for the tenants that when eviction is sought under Section 11(3) of the Act for demolition of the tenanted building and utilisation of the site for the need of the landlord, it is necessary for the landlord to plead and prove that no other suitable vacant land was available in his possession to satisfy his need. It is also pointed out that the land remaining vacant as part of the plot in which the tenanted building is situate itself could be utilised for construction of the building by the landlord. RCR Nos: 439,440,441/05 & 206/09 15 21. The first proviso to Section 11(3) reads as follows:- “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.” A reading of the above provision would show that what is enacted by the legislature is a bar against the Rent Control Court giving any direction to the tenant to put the landlord in possession of the building, where 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 a particular case it would be just and proper to do so. Therefore, what is contemplated by the said proviso is ownership and possession of the landlord over another building and not the building site or a vacant plot of land. As per Section Section 2(1) of the Act 'building' includes 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 the garden, grounds, wells, tanks and structures, if any, appurtenant to such building, hut etc. Therefore, the expression 'building ' used in the Act cannot be said to include a vacant plot of land. The proviso speaks only about the building and nothing else. Just because the proviso refers to appurtenant land, gardens etc. RCR Nos: 439,440,441/05 & 206/09 16 which are normally considered to be part of the building, it cannot be held that even vacant land or building site would come within the definition of building under the Act. We also notice that the Act itself is an Act to regulate the leasing of buildings and to control the rent of such buildings in the State of Kerala as proclaimed by the preamble. To accept the contention of the tenant would amount to supplying an amplitude to the proviso that would extend beyond the scope of even the very enactment. Therefore, we refrain from giving any such extended meaning to