Vakkom P.S. Balasubramanian v. E.M. Hussain Shabanaz

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE P.UBAID MONDAY, THE 27TH DAY OF JANUARY 2014/7TH MAGHA, 1935 ## **RCRev..No. 86 of 2010 (D)** AGAINST THE JUDGMENT IN RCA .NO.21/2008 ON THE FILE OF THE COURT OF THE II ADDL.DISTRICT JUDGE (ADDITRIONAL RENT CONTROL APPELLATE AUTHORITY II), THIRUVANANTHAPURAM DATED 20-01-2010 RCP NO.51/2006 OF THE RENT CONTROL COURT, THIRUVANANTHAPURAM. ## **REVISION PETITIONER:APP-ELLANT: RESPONDENT:-** VAKKOM P.S.BALASUBRAMANIAN ADVOCATE, ROOM.NO.2, GROUND FLOOR, VICTORY BUILDING, VANCHIYOOR, THIRUVANANTHAPURAM., ' BY ADVS.SRI.DEVAN RAMACHANDRAN SRI.K.M.ANEESH ## **RESPONDENT: RESPONDENT: PETITIONER** : E.M.HUSSAIN SHABANAZ, AVANAVANCHERY ATTINGAL REPRESENTED BY HIS POWER OF ATTORNEY HOLDER MRS. SAMEENA HUSSAIN , SHABANAZ, AVANAVANCHERY ATTINGAL. BY ADV. SRI.P.GOPALAKRISHNAN NAIR THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 27.01.2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **ORDER IN I.A.NO.686/2010 IN R.C.R.NO.86/2010** DISMISSED 27.1.2014 SD/- K.T.SANKARAN, JUDGE SD/- P.UBAID, JUDGE //TRUE COPY// AHZ/ ## **K.T.SANKARAN & P.UBAID, JJ.** ## **----------------------------------------------------** ## **R.C.R. NO.86 OF 2010 D ---------------------------------------------------Dated this the 27[th] day of January, 2014** ## **O R D E R** ## **K.T.Sankaran, J.** The petitioner, the tenant in respect of a room in the building in question, challenges the concurrent findings of the courts below under Section 11(8) of the Kerala Buildings (Lease and Rent Control) Act. 2. The respondent landlord filed R.C.P.No.51 of 2006 on the file of the Rent Control Court, Thiruvananthapuram under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act'). The landlord alleged that rent was in arrears and that the building is required bona fide for expanding his business. It was averred in the Rent Control Petition that the landlord is conducting a DTP centre and photostat shop in one of the rooms in the main building and the tenant is running his office in the neighbouring room. The landlord averred that he wants ## **R.C.R. NO.86 OF 2010 D** :: 2 :: to expand his business and, for that purpose, the room in the occupation of the tenant is also required. The landlord was employed in a Gulf country for the last several years. He stated that he wants to come to India and settle here permanently. During trial, the respondent/landlord came to India permanently and he produced documents before the court below to satisfy that he came back to India permanently. 3. The tenant is an Advocate. He is running his office in the petition schedule building. Room No.1 is occupied by the landlord. He is running a DTP centre and photostat shop in that room. Room No.2A is the staircase room. The tenant occupies room No.2. According to the landlord, he wanted to run an internet cafe in room No.2, which is in occupation of the tenant. 4. Before the Rent Control Court, oral and documentary evidence was adduced by both parties. The Rent Control Court raised the points for consideration touching upon Section 11(3) as well as Section 11(8) of the Act. Points 2 to 4 with respect to Section 11(3) and the proviso were considered together and the Rent Control ## **R.C.R. NO.86 OF 2010 D** :: 3 :: Court found that the need put forward by the landlord is bona fide. It was also found by the Rent Control Court that the tenant failed to discharge the burden cast upon him in order to claim the benefit of the second proviso to Section 11(3) of the Act. After holding so, the Rent Control Court found from the averments in the Rent Control Petition as well as the evidence adduced in the case and the admitted facts that the Rent Control Petition really comes under Section 11(8) of the Act. The Rent Control Court considered the case under Section 11(8) as well and held that the need put forward by the landlord is genuine. The first proviso to Section 11(10) of the Act provides that in the case of an application under sub-section (8), the Rent Control Court shall reject the application if it is satisfied that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord. The Rent Control Court considered the comparative hardship as envisaged under the proviso to sub-section (10) of Section 11 and held in favour of the landlord. Accordingly, the Rent Control Court allowed the Rent Control Petition under Sections 11(2)(b) and 11(8) of the Act. 5. The tenant filed R.C.A.No.21 of 2008 on the file of the Rent ## **R.C.R. NO.86 OF 2010 D** :: 4 :: Control Appellate Authority, Thiruvananthapuram. The Appellate Authority found that the Rent Control Court was not justified in granting the order of eviction under Section 11(2)(b) of the Act and, accordingly, that part of the order was set aside. 6. The Appellate Authority also found that the claim of the landlord would really come under Section 11(8) of the Act and not under Section 11(3). This finding is supported by the decisions in **Thomas** v. **Sreedhara Varma** : **2007 (4) KLT SN 58 Case No.64** and **Indian Saree House** v. **Radhalakshmy : 2006 (3) KLT 129** . ## 7. In **Indian Saree House** v. **Radhalakshmy : 2006 (3) KLT** **129,** it was held: “12. ...... The ingredients of sub-ss. (3) and (8) are distinct and different. They are mutually exclusive. Of course, some of the matters to be proved in order to get an order either under sub clause (3) or sub-clause (8) of S.11 are common. The landlord has to prove that the claim is _bona fide_ , in both these situations. If the claim is not proved to be bona fide, it shall be rejected as provided under S.11(10) of the Act. The first proviso ## **R.C.R. NO.86 OF 2010 D** :: 5 :: to S.11(3) deprives the landlord to get an order for eviction if he 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 special reasons exist. Such a condition is absent in the case of S.11(8). Even if the landlord has another building, it may not have any relevance in an application under S.11(8). In an application under S.11(8), the landlord need not prove any special reasons as provided in the first proviso to S.11(3). Ownership and possession of the landlord in respect of another building is irrelevant in deciding an application of S.11(8), except, probably, in deciding the comparative hardship under the proviso to S.11(10), that too, depending upon the facts and circumstances of the case. The second proviso to S.11 (3) mandates that no order under S.11(3) shall be passed in favour of the landlord if the tenant is depending for his livelihood mainly on the income derived from any trade or business carried in the building and if there is no other suitable building available in the locality for the tenant to carry on such trade or business. These requirements are absent in S.11(8). So also, such protection is not available to a tenant against whom an application under S.11(8) is filed. The first proviso to S.11(10) states that the Rent Control Court shall reject the application under S.11(8) if ## **R.C.R. NO.86 OF 2010 D** :: 6 :: it is satisfied that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord. The facts constituting the ingredients of the second proviso to S.11(3) may be relevant in certain cases coming under S.11(8) only for considering the proof or otherwise of the comparative hardship under the first proviso to S.11(10). The third and fourth proviso to S.11(3) are also not applicable in the case of an application under S.11(8). To our mind, the above mentioned items of distinction between S.11(3) and 11 (8) would make it clear that they are mutually exclusive. ...” 8. The Appellate Authority considered the case of the landlord under Section 11(8) for additional accommodation, in paragraphs 11 to 13 of the judgment and held that the claim of the landlord is bona fide. The Appellate Authority took into account the fact that the landlord has come back to India permanently as proved by documentary evidence. The contention put forward by the tenant that the business in room No.1 is not being run by the landlord was negatived by the Appellate Authority on facts and on the basis of Ext.A2 tax receipt. The contention put forward by the tenant that there is another vacant room in the upstair portion was also ## **R.C.R. NO.86 OF 2010 D** :: 7 :: considered by the Appellate Authority and the case put forward by the landlord that the room in the upstair portion would not be adequate for expansion of the business conducted in room No.1 in the down stair was accepted. 9. The contention put forward by the tenant that the landlord could occupy the room in the upstair portion instead of claiming eviction of the tenant, is without substance. The tenant cannot dictate terms with the landlord. It is for the landlord to decide which room he has to occupy. This point is well settled by the decision of the Supreme Court in **Sait Nagee Purushotham & Co. Ltd.** v. **Vimalabai Prabhulal** : **2005 (4) KLT 452.** The Supreme Court held that it is not for the tenant to dictate the terms to the landlord and advise him what he should do and what he should not. It is the privilege of the landlord to choose the nature of the business and the place of business. In **Benny** v. **Koshy P.John** : **2005 (1) KLT SN 114 Case No.145** , it was held that the tenant cannot dictate to the landlord to remain content with smaller and less convenient premises in preference to the tenanted premises which is more spacious and more advantageous. It is not for the court also to find ## **R.C.R. NO.86 OF 2010 D** :: 8 :: out whether even without such additional accommodation the landlord could somehow manage to carry on. 10. The Appellate Authority considered the comparative hardship of the parties as envisaged under the first proviso to Section 11(10) of the Act and considered the materials which are available in evidence. The Court considered the fact that the tenant is an Advocate, he is occupying the building for the last about twenty years, he is also a Notary Public and that his wife is a practicing doctor. The Appellate Authority noticed that the tenant did not even produce any document to show his income in order to consider the comparative hardship. It is also not proved that there is no other building available in the locality to shift his office. It is to be noted that under Section 11(3) of the Act, even after finding that the landlord has established the bona fide need, the tenant would not be liable to be evicted if the ingredients of the second proviso are satisfied, one of the ingredients being that no other building is available in the locality for the occupation of the tenant. It is well settled by a catena of decisions right from **1976 KLT 1** ( **Kochappan Pillai v. Chellappan** ) that though the second proviso is couched in ## **R.C.R. NO.86 OF 2010 D** :: 9 :: the negative form, the burden to establish the ingredients of the said proviso is on the tenant. Though no such specific ingredient as to nonavailability of alternative building is mentioned under the proviso to Section 11(10), that is certainly a circumstance that could be considered by the Court. It has come out in evidence that the landlord has only one building and that is the building of which the petition schedule room forms part. 11. The courts below considered the oral and documentary evidence and held on facts that the need put forward by the landlord is established, that he needs the premises for expanding his business and that the hardship that would be caused to the tenant will not outweigh the advantage to the landlord. We do not find any illegality or irregularity or impropriety in the order of the Rent Control Court and the judgment of the Appellate Authority in so far as it relates to the eviction of the tenant under Section 11(8) of the Act. For the aforesaid reasons, the Rent Control Revision is dismissed. The second proviso to Section 11(10) provides that the Rent Control Court may give the tenant a reasonable time for putting ## **R.C.R. NO.86 OF 2010 D** :: 10 :: the landlord in possession of the building and may extend such time so as not to exceed three months in the aggregate. In the facts and circumstances, we grant three months' time to the tenant to vacate the premises on condition that he files an affidavit before the Rent Control Court within one month, unconditionally undertaking to vacate the petition schedule building before the expiry of three months. **(K.T.SANKARAN) Judge** **(P. UBAID) Judge** ahz/