Stella vs Kerala Forest Protective Staff Association

B. Kemal Pasha, J.—Aggrieved by an order against them u/s 11(3) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as ''the Act''), passed by the Rent Control Appellate Authority, Thrissur, the tenants in the two shop rooms of the very same landlord, have come up in revision. Originally, the respondent/landlord, who is the Kerala Forest Protective Staff Association, represented by its State President, had filed R.C.P. No. 15 of 2005 and RCR 73 and 166/2011 R.C.P. No. 16 of 2005 before the Rent Control Court, Thrissur, on the grounds under Sections 11(2)(b) and 11(3) of the Act. When it reached the stage of evidence, the ground u/s 11(2)(b) was not pressed, as the arrears of rent was discharged by the tenants. The Rent Control Court found that the need urged by the landlord for own occupation is not bona fide and also that the tenants are entitled to the protection of the 2nd proviso to Section 11(3) of the Act. At the same time, the Rent Control Court found that the claim of the landlord u/s 11(3) is not hit by the first proviso to Section 11(3) of the Act. Aggrieved by the dismissal of the RCPs., the landlord preferred R.C.A. No. 55 of 2007 from the order on R.C.P. No. 15 of 2005 and R.C.A. No. 56 of 2007 from the order on R.C.P. No. 16 of 2005. The learned Rent Control Appellate Authority, Thrissur found that the need urged by the landlord for own occupation is bona fide and that the tenants are not entitled to the protection of the 2nd proviso to RCR 73 & 166/2011 Section 11(3) of the Act. Further, the learned Rent Control Appellate Authority upheld the finding entered by the Rent Control Court that the claim of the landlord u/s 11(3) is not hit by the first proviso to Section 11(3) of the Act. Consequently, the learned Rent Control Appellate Authority, Thrissur allowed the RCAs. by allowing the RCPs. u/s 11(3) of the Act. Aggrieved by the findings entered by the learned Rent Control Appellate Authority in R.C.A. No. 55/07 and R.C.A. No. 56/07, the tenants have come up in revisions as R.C.R. No. 73/11 and R.C.R. No. 166/11 respectively.

Heard Sri. K.P. Sreekumar, learned counsel for the petitioner in R.C.R. No. 73 of 2011, Sri. N. Asok Kumar, learned counsel for the revision petitioner in R.C.R. No. 166 of 2011, and Sri. Benny Varghese the learned counsel for the respondent in both the revisions.

The learned counsel for the revision petitioners argued that the need urged by the landlord is not bona fide RCR 73 & 166/2011 and that the petitioners are entitled to the protection of the 2nd proviso to Section 11(3) of the Act. The learned counsel for the petitioners have gone to the extend of challenging the concurrent findings entered by both the courts below on the first proviso to Section 11(3) of the Act also.

The landlord is the Kerala Forest Protective Staff Association, represented by its State President. According to the landlord, room No. 11/760 which is the subject matter in R.C.P. No. 15/05 from which R.C.R. No. 73/11 has arisen, was rented out to the tenant on 21.7.2003, on a monthly rent of 385/-. According to the respondent, the respondent is in bona fide need of the said shop room for the District Committee Office of the said Association. According to the landlord, room No. 11/765, which is the subject matter in R.C.P. No. 16/05 from which R.C.R. No. 166/20011 has arisen, was rented out to the tenant on 6.5.2003. According to the respondent, the respondent is in bona fide need of the said shop room for the Taluk Committee Office of the Association. RCR 73 & 166/2011 According to the landlord, no other vacant buildings are available with the Association for the said purpose and that other rooms are available in the nearby locality for shifting the business of the petitioners, and that the tenants have other sources of income also for their livelihood.

There is no challenge regarding the landlord-tenant relationship between the parties. The petitioner in R.C.R. No. 73/2011 is conducting a grocery shop in the petition schedule shop room. According to her, the need urged by the landlord is not bona fide and that no other shop rooms are available in the locality for her to shift her business. Further, according to the said tenant, two other shop rooms in the same building are lying vacant and available to the Association, in case of any necessity to start the functioning of the District Committee Office as well as Taluk Committee Office of the Association.

The tenant in R.C.R. No. 166/2011 is conducting a Telephone booth in the schedule shop room. He is a RCR 73 & 166/2011 handicapped person. According to him, no other shop rooms are available in the locality for shifting his telephone booth and that the need urged by the landlord is not bona fide. According to him also, other vacant rooms are available with the landlord for their purpose.

In R.C.R. No. 73/2011, the tenant has produced the extract of the Building Tax Assessment Register in respect of the shop rooms in the whole building for the period from 1993-1994 to 2011-2012. The learned counsel for the revision petitioner in R.C.R. No. 73/2011 has pointed out that the entry in the said Building Tax Assessment Register as Sl. No. 102 is relating to shop room No. 11/764, which was originally noted as vacant and there, in red ink, it was entered on 7.4.2004 that the tenant in the said shop room is one C.P. Mariamma. According to the learned counsel for the petitioner, the said shop room was lying vacant. It seems that the landlord has produced the copies of the rent deeds in respect of the two shop rooms pointed RCR 73 & 166/2011 out by the revision petitioner as vacant. Apart from the rent deeds, the renewed rent deeds were also produced. It is evident that both the said shop rooms pointed out by the petitioner were not lying vacant at any time, and that the assessment register contained a mistaken entry as one of the shop rooms was lying vacant, and the same was got corrected and it is shown that one C.P. Mariamma is in occupation of room No. 11/764. The copies of the rent deeds, and the renewed rent deeds executed by the said C.P. Mariamma are also produced. On going through the evidence and on hearing either side, we are satisfied that the claim of the landlord u/s 11(3) of the Act is not hit by the first proviso to Section 11(3) of the Act. The concurrent findings entered by both the courts below on the said aspect are not perverse and there is no room for any interference at all.

Regarding the need urged by the landlord, it seems that the Rent Control Court was carried away by the RCR 73 & 166/2011 fact that the landlord was reluctant to receive the rent from the tenants and entered a finding that the need urged by the landlord is not bona fide. No discussions are seen made by the Rent Control Court to find that the need urged by the landlord is not bona fide. At the same time, the said aspect has been clearly considered by the learned Rent Control Appellate Authority. The learned Rent Control Appellate Authority has considered the evidence in its correct perspective and has arrived at the correct conclusion that the need urged by the landlord is bona fide. It is trite that the tenants cannot dictate to the landlord as to the room which has to be chosen by the landlord for the own occupation of the landlord. It is true that there are other tenants in the building. According to the landlord, the landlord is in need of these two shop rooms for housing the office of the District Committee as well as the office of the Taluk Committee of the Association. We do not find any ground to interfere with the said finding entered by the RCR 73 & 166/2011 learned Rent Control Appellate Authority, and we are also satisfied that the need urged by the landlord is bona fide.

Regarding the 2nd proviso to Section 11(3) of the Act, it is trite that the burden is on the tenant to prove that he is entitled to the 2nd proviso to Section 11(3) of the Act. Apart from contending that their only source of livelihood is the income from the business in the schedule shop room, no documents are produced to prove as to what exactly is the income being derived from their business in the schedule shop rooms. The Rent Control Court has found fault with the landlord in not adducing evidence relating to other sources of income of the tenants. It seems that the Rent Control Court had proceeded with a mistaken assumption that the burden is on the landlord to prove that the tenant is entitled to the protection of the 2nd proviso to Section 11(3) of the Act. When there is no evidence to show as to the nature and quantity of income being derived from their business in the scheduled shop rooms, it cannot RCR 73 & 166/2011 be said that the tenants are depending on the income being derived from the business in the schedule shop rooms as the main source of their livelihood. Further, no evidence has been adduced to show that no other buildings are available in the locality for the tenants to shift their business. The tenants have not made any attempt to enquire whether any buildings are available in the locality to shift their business. Matters being so, we are of the considered view that the findings entered by the learned Rent Control Appellate Authority on the ground u/s 11(3) of the Act are not liable to be interfered with.

Considering the facts and circumstances of the case and the nature of the contentions resorted to by the tenants, we are of the view that a period of six months can be granted to the tenants to vacate the schedule shop rooms, on conditions. In the result,

(a) These Rent Control Revisions are dismissed. RCR 73 & 166/2011

(b) The tenants are granted time upto 30.09.2014 from today to vacate the premises and deliver possession of the shop rooms to the landlord, on the following conditions:

(i) The petitioners will file an affidavit, within a period of one month from today, unconditionally undertaking to vacate the petition schedule premises on or before 30.09.2014 before the Execution Court or the Rent Control Court as the case may be.

(ii) The tenants pay charges towards use and occupation of the building at the current rent rate from today till they give vacant possession of the premises to the landlord.

(iii) Execution proceedings, if any, pending before the executing court shall be kept in abeyance upto 30.09.2014, if the aforesaid condition is satisfied.

(iv) If there is default in performing any of the conditions imposed in clause (b) above, the benefit given to RCR 73 & 166/2011 the tenants as per this order will stand recalled automatically and the executing court shall effect delivery forthwith.