SARANGADHARAN Vs. ULLATTUTHODI MINI SUNDERSH & OTHERS

JUDGEMENT

(1.) One of the tenants challenges the concurrent findings of the Rent Control Court and the Rent Control Appellate Authority under S. 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 S. 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. The petition schedule building was let out to Sankaran Vydiar, the father of the revision petitioner, on a monthly rent of Rs. 125/- in the year 1965. The rent was subsequently enhanced to Rs. 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 S. 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.

(2.) 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 PW 1, 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.

(3.) The tenants claimed the benefit of the second proviso to S. 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 S. 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 utilizing 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 S. 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.