Rent Law; Shahul Hameed Vs. P.E. Abdu Razak [Kerala High Court, 25-11-2016]

Rent Control & Eviction – When a tiny room only is required for the landlord, he need not forgo a monthly rent by occupying a spacious room.

Rent Control & Eviction – A lazy trader cannot be considered to be a person solely or mainly depending for his livelihood on the income derived from his business.

Rent Control & Eviction – In all cases tenants need not prove their precise income. But evidence must be produced to prove the approximate income.

Rent Control & Eviction – If the tenant has only one source of income, he should prove that he is getting an income with which he can live. He cannot be heard to say that he need not produce any evidence to prove his income if he has only one source of income.

Rent Control & Eviction – If the tenant has more sources of income than one, he should prove the approximate income from each source to prove that the income from the business or trade conducted in the tenanted premises is the main source of income for his livelihood.

# Stair Case Room

IN THE HIGH COURT OF KERALA AT ERNAKULAM

K.T.SANKARAN & A.M.BABU, JJ.

R.C.R.318 of 2016

Dated 25th November, 2016

RCA 27/2014 of III RENT CONTROL APPELLATE AUTHORITY, PALAKKAD IN RCP 34/2013 of THE RENT CONTROL COURT (ADDL.MUNSIFF), PALAKKAD

REVISION PETITIONER/APPELLANT/TENANT – RESPONDENT

SHAHUL HAMEED A. PALAKKAD

BY ADVS.SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P SMT.LILLU L. KRISHNAN

RESPONDENT/LANDLORD-PETITIONER

P.E. ABDU RAZAK, MALAPPURAM

ORDER

A.M. Babu, J

1. Rent Control Court, Palakkad allowed R.C.P 34/2013. Tenant’s appeal, R.C.A.27/2014, was dismissed by the Rent Control Appellate Authority, Palakkad. The tenant has preferred this revision.

2. Eviction of the tenant was sought under

# Section 11(2)(b) and (3) of the Kerala Buildings (Lease and Rent Control) Act

(for short “the Act”). The Rent Control Court ordered eviction under both the grounds. The order of eviction passed under section 11(2) (b) was set aside by the Appellate Authority. For, the petition was filed before the expiry of 15 days from the date of service of notice on the tenant. The landlord fairly conceded before the Appellate Authority that the order of eviction passed under Section 11(2)(b) would not stand. What remains is the ground under section 11(3).

3. The landlord owns a multi-storied building/shopping complex. The tenant is in occupation of a room on the ground floor of the building. That room is under the stair case. Therefore the parties call it a ‘stair case room’. It measures 80 square feet. The landlord appointed a person to be the manager of the shopping complex. An office room is provided to the manager in the building complex itself. The above are admitted facts.

4. According to the landlord, he wants to shift the office of the shopping complex to the ‘stair case room’. This precisely is the need alleged by him. The tenant contends that there is no such need for the landlord. The Rent Control Court and the Appellate Authority found the need to be bona fide.

5. Heard the learned counsel for the revision petitioner/tenant. The learned counsel relied on the decision of the Apex Court in

# Adil Jamshed Frenchman v. Sardar Dastur School Trust, AIR 2005 SC 996

The Supreme Court holds that (i) a bona fide requirement must be an outcome of a sincere and honest desire in contradistinction with a mere pretext for evicting the tenant, (ii) the question to be asked by a Judge of facts by placing himself in the place of the landlord is whether in the given facts proved by the material on record the need to occupy the premises can be said to be natural, real, sincere and honest, (iii) the concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life and (iv) the bona fide requirement has to be distinguished from a mere whim or fanciful desire. Another decision on the same point cited by the learned counsel was

# Raghunath G.Panhale v. Chaganlal Sunderji, AIR 1999 SC 3864

We shall consider whether the landlord did prove his need to be genuine or bona fide. We will have to discuss the evidence at some length.

6. Admittedly the landlord has employed a care taker or manager at his building complex. The duties of the manager are collecting rent from tenants, attending to their complaints, doing timely repairs to the building, carrying out periodical maintenance et cetera. Necessarily he should have an office room. He has or had one. The parties were at dispute as to where exactly was the office room situated. Another dispute was about the condition of the room where the office was housed. The landlord contended that the office was functioning in a temporary dilapidated shed which stood on the terrace of the building. Therefore, according to him, the office should be shifted to the ‘stair case room’ on the ground floor. The tenant disputes the allegation that the office is functioning in a dilapidated shed on the terrace of the building. He contends that one of the rooms in the building is used as the office room. Therefore, according to him, there is no need to shift the office to anywhere.

7. PW1 is the landlord. His manager is PW2. RW1 is the tenant. All of them filed affidavits in lieu of examination-in-chief. PW1 stated in his affidavit that the office of the building complex was housed in a temporary shed on the top of the building. PW2 also stated so in his affidavit. The temporary nature of the shed was challenged by the tenant in the cross-examination of PWs1 and 2. Its location on the terrace of the building was also challenged in crossexamination. The Rent Control Court and the Appellate Authority have referred to certain admissions of RW1 in his crossexamination. He admitted that the office room was on the terrace. He admitted that it was roofed with asbestos sheets. A structure with asbestos sheets as the roof and put up on the terrace of a three storied building indicates its temporary nature. It cannot be considered to be one constructed to have the office housed in it permanently. The landlord proved that the office room was functioning in a temporary shed on the terrace of the building. PW2’s evidence suggests that when the temporary shed was put up, there were only a few tenants in the building complex. He has further stated that the situation has changed since every room in the building is now in the occupation of tenants. Therefore a convenient office room has become necessary as PW2 said. The need to shift the office from the terrace of the building to a room on the ground floor cannot be said to lack bona fides.

8. PW2, by the very nature of his employment as the manager, has to attend to the complaints of the tenants in the building. As RW1 said he himself had twice or thrice gone to the terrace to complain to the manager. RW1 complained to PW2 about the broken gate, parking of cars in front of the shopping complex et cetera. The Rent Control Court considered the said evidence of RW1. There are other tenants in the building. They may also have complaints to be reported to the manager. An office room on the ground floor is convenient for the tenants too. PW2 said it was not possible for him to control such situations by sitting in a room on the top of the building. It cannot be disputed that an office room on the ground floor is ideal and most suitable for the shopping complex. The landlord therefore wants to shift the office to a room on the ground floor. We are unable to say that such a need is not bona fide.

9. The temporary shed was leaking during the rainy seasons. It was not safe to keep records in the shed. Therefore the shed is not in use as the office now. What you have read above is the evidence of PW1. What you read below is the evidence of PW2 in crossexamination. The office ceased to function in the shed as it leaked during rains. No document is kept in the shed since 2012. Files, accounts et cetera are now kept in PW2’s house.

10. We have considered the evidence of PW1 and PW2 on the present condition of the temporary shed. The situation has worsened during the pendency of the proceedings. The temporary shed cannot be used now. The tenant cannot say that let the landlord repair the shed and use it. For, as already seen, the need to bring the office to a room on the ground floor itself is bona fide. The Court and the Authority below found the need of the landlord for own occupation to be bona fide after considering the present condition of the temporary shed.

11. We are satisfied that the landlord proved his bona fide need. The decisions cited by the learned counsel are of no help to him. For, the need of the landlord for own occupation has been proved to be bona fide. The tenant has no case that no office is necessary for the building complex. He has no case that the ‘stair case room’ is not fit or sufficient for use as the office room. The temporary shed where the office was housed became unfit for use. The Rent Control Court and the Appellate Authority considered all relevant matters to reach their conclusion that the landlord proved his need for own occupation to be bona fide. We concur. We have to. That strong the evidence is.

12. The first proviso to Section 11(3) of the Act does not permit passing of an order of eviction against the tenant if the landlord has another building of his own in his possession in the same city, town or village, unless there exist special reasons in favour of the landlord. We shall consider this aspect next.

13. The tenant contends that a tenant by name Babu Peter vacated a room in the same building. It is also contended that the said room is still lying vacant. That room bearing door No.18/2-1 is shown in the petition to be still in the occupation of Babu Peter.PW1 has stated in crossexamination that Babu Peter is still running his business in the said room measuring 2000 square feet. The suggestion that the said room is vacant was denied by PW1. Apart from the suggestion put to PW1 and the assertion of RW1, nothing tangible was tried by the tenant to prove that the said room was vacant. No such suggestion was put to PW2, the manager. No commission was taken out to prove that door No.18/2-1 was lying vacant.

14. Another room stated in the counterstatement to be in the possession of the landlord was a room of 300 square feet floor area. The tenant who gave the door number of the room tenanted to Babu Peter did not state the door number of the room having the floor area of 300 square feet. It should be noted that the door number of every room and the names of all the tenants are shown in the petition. No question pertaining to the said room (300 square feet) is seen put to PW1 or PW2 in crossexamination. It seems that the said contention was given up by the tenant.

15. It was also contended in the counterstatement that the landlord was in possession of other vacant rooms. This is too a vague contention. Such a contention cannot be taken for trial. The tenant did not take it for trial. He failed to establish that any vacant room was in the possession of the landlord at the time of filing of the rent control petition.

16. But two tenants vacated pending the proceedings. The landlord got vacant possession of those two rooms. He let out those rooms. One of the rooms was one where a financier conducted his business by name ‘Malabar Gold Loan’. The said room having a plinth area of 300 square feet was let out on a monthly rent of Rs.4000/-. In the other room was housed a business in interior designing and event management called ‘We-Five’. That room measuring 1500 square feet was also rented out; the rent being 20,000/- per month. PW1 admitted the above facts. PW2 too spoke to the obtaining of vacant possession of two rooms and their letting out pending the proceedings. The landlord is entitled to get the revision petitioner evicted only if a special reason exists.

17. PW1 and PW2 did not go home from the witness box without giving reasons for not occupying the aforesaid two rooms. They spoke that those rooms were too large. That much space was not required for the office room, they said. PW1 deposed that the space required for the office room was 75-80 square feet. The reason given by him is quite convincing. He does not require a spacious office room measuring 1500 square feet. He does not consider even a room with a plinth area of 300 square feet necessary for him. His requirement is only an office room on the ground floor of the building for his manager to sit and a little space where the records could be kept. The ‘stair case room’ measuring only 80 square feet is ideal for the requirement of the landlord. What is needed for the landlord is only a room of the size of the ‘stair case room’. He does not need the spacious rooms which fell vacant during the pendency of the proceedings. This is indeed a special reason within the meaning of the first proviso to Section 11(3) of the Act. When a tiny room only is required for the landlord, he need not forgo a monthly rent of Rs.20,000/- by occupying the room measuring 1500 square feet. He need not forgo even a monthly rent of Rs.4000/- by occupying the room with the plinth area of 300 square feet. This too is a special reason within the meaning of the said proviso. We confirm the similar finding of the Rent Control Court and the Appellate Authority.

18. Lastly, the second proviso. That is a proviso with two limbs. The first, the tenant must be a person depending for his livelihood mainly on the income derived from any trade or business carried on in the tenanted premises. The second, there must be no other suitable building available in the locality for him to carry on his trade or business. The burden to prove both the ingredients of the second proviso is on the tenant.

19. There is dispute between the parties as to what exactly is the business carried on in the tenanted premises by the tenant. He has contended in the counter-statement that he is not doing any business other than running a courier service. He states in the revision petition that in addition to the courier service he is doing a little real estate business. He is supposed or expected to keep accounts in connection with the courier service. He did not produce his accounts to prove his income. It appears that he has not even orally disclosed what his approximate income is. No tenant can contend for protection under the second proviso hiding his income. We do not mean to say that in all cases tenants should prove their precise income. But evidence must be produced to prove the approximate income. If the tenant has more sources of income than one, he should prove the approximate income from each source to prove that the income from the business or trade conducted in the tenanted premises is the main source of income for his livelihood. If he has only one source of income, he should prove that he is getting an income with which he can live. He cannot be heard to say that he need not produce any evidence to prove his income if he has only one source of income. If that is not the interpretation, a tenant whose business was always at loss should also be taken care of by the second proviso. That is not the purport of the proviso. A lazy trader may not get any income or may get only a meagre income. Such a trader cannot be considered to be a person solely or mainly depending for his livelihood on the income derived from his business. The revision petitioner failed to prove the ingredient in the first limb of the second proviso to Section 11(3) of the Act. We confirm the concurrent finding on the point.

20. The revision petition states under ground- C that the second limb of the second proviso is to be proved prima facie by the landlord. The said statement is contrary to the settled position of law on the subject. The burden is on the tenant. What is to be proved is a negative fact, but still the burden is on him. The Rent Control Court stated that the evidence of RW1 itself would show that he did not take any earnest effort to find out a suitable building in the locality. He did not do anything to discharge the burden presumably because of his impression that the burden was on the landlord. The finding of the Rent Control Court was confirmed by the Appellate Authority. We find nothing to interfere with the said concurrent finding too.

21. Our jurisdiction under Section 20 of the Act is only to examine the legality, regularity and propriety of the impugned judgment. The Rent Control Court and the Appellate Authority have considered every aspect and came to the right conclusion. In the absence of any illegality, irregularity or impropriety, we have no option but to dismiss the revision. We do so.

22. The learned counsel requested us to grant sometime to the tenant to vacate the premises in the event of dismissal of the revision. The tenant is conducting the business of courier service. He may need sometime to find out an alternative building to do his business. We are therefore inclined to grant him time till 31.3.2017 to vacate the premises. Time is granted by us subject to the following conditions. The tenant shall file an affidavit before the Rent Control Court within one month from today unconditionally undertaking to vacate the premises on or before 31.3.2017. The entire rent arrears shall be paid directly to the landlord or deposited in the Rent Control Court for payment to him within one month. Rent in future shall be paid on or before the 10th day of every month.

23. The revision is without merit. We dismiss it. We grant time till 31.3.2017 to the revision petitioner to vacate the premises, provided the conditions insisted on in this order are complied with. If the tenant commits breach of any of the conditions, the benefit given to him under this order shall stand withdrawn.

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