Kerala High Court
Komalam vs Mohammed on 9 August, 2001
ORDER S. Sankarasubban, J.
1. This C.R.P. is filed under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as "the Act") against the Judgment of the Rent Control Appellate Authority, Manjeri in R.C.A. No. 10 of 1997. The tenant is the revision petitioner. The Rent Control Petition was filed by three petitioners who are co-owners of the building. The petition was filed under Sections 11(2)(b) and 11(3) of the Act. The rent control court dismissed the petition. Against that landlord preferred appeal before the Appellate Authority and the Appellate Authority allowed the eviction under Section 11(3) of the Act. So far as the ground under Section 11(2)(b) is concerned, the tenant has deposited the arrears of rent in the court below and hence that question does not arise for consideration. The question before us is whether the eviction under Section 11(3) is legal.
2. Petitioner wanted the building for the bona fide need of the first petitioner. According to the petitioners, the first petitioner retired as a Head-master. He wants to start a business in sanitary wares in the petition schedule building. The amount which he receives as pension is not enough. He has no other building in his possession. The tenant contended that the building was originally taken by her father. After the death of her father, present petitioner became the tenant. She is conducting a shop in foot wear. She is depending on the income received from the business. There are no alternate building for shifting. It is also contended that the bona fide need urged is not correct. The first petitioner is staying about 20 kms. away from the petition schedule building. Petitioners have got other building in their occupation. The first petitioner was examined as PW1 and the tenant was examined as RW1.
3. The main contention urged by the counsel for the revision petitioner is that the first petitioner in the RCP is a retired person. He is living about 20 kms. away and hence, there is no bona fide in stating that he wants to start a business in sanitary wares. It is also submitted that he has no previous experience in doing business. He also contended that before filing the Rent Control petition certain rooms became vacant but that was not used by the first petitioner. According to us, so far as the bona fide need is concerned, we agree with the appellate authority that need urged is bona fide. It cannot be said that merely because the first petitioner is a retired person, he should sit in his house and should not do any other thing. First petitioner has stated that he has no sons and has two daughters. The pension he is earning is not enough to meet his needs. So far as this aspect is concerned, according to us, what the court has to find is whether there is any oblique motive in raising the contention under Section 11(3) of the Act. If there is no oblique motive, the need urged can be said to be bona fide. The mere fact that first petitioner is a retired employee does not mean that he cannot start business. In the decision reported in Viswanath v. Hidayatt Ullah, (1999) 2 SCC 535, the Honourable Supreme Court held as follows:
"The opinion of the High Court that since the landlord, a retired government servant, had not stated that his pension was not adequate, it implied that there was no bona fide need for him to start any business is wholly unsustainable and not at all rational. There is no presumption that a pensioner who had adequate pension cannot have bona fide need to start his business after requirement. The High Court not only misread and misunderstood the pleadings, but also ignored the vital evidence which had been brought on the record to establish the bona fide need of landlord".
In another decision of the Supreme Court reported in Dattatraya Laxman Kamble v. Abdul Sasul Moulali Kotkune, AIR 1999 SC 2226, the question that arose was whether previous experience in conducting business is necessary to show the bona fide need. In dealing with the case the Honourable Supreme Court held as follows:
"The landlord who seeks eviction of this tenant on the ground of bond fide requirement of starting business need not establish that he possess the know-how necessary for doing the business. If a person wants to start a new business of his own it may be to his own advantage if he acquires experience in that time. But to say that any venture of a person in the business field without acquiring past experience reflects lack of his bona fides is a fallacious and unpragmatic approach. Many a business have flourished in this country by leaps and bounds which were started by novice in the field; and many other business ventures have gone haywire despite vast experience to the credit of the propounders. The view that acquisition of sufficient know-how is a pre-condition for even proposing to start any business, if gains approval as a proposition of law, is likely to shatter the initiative of young talents and deter new entrepreneurs from entering any field of business or commercial activity".
Thus, we are of the view that mere fact that first petitioner is a retired person does not lead to a presumption that he may not be competent to start the business. There is nothing to show that first petitioner is not healthy. Hence, we are of the view that the bona fide need is proved by the petitioner.
4. The next question is regarding some rooms in the occupation of the petitioners/ landlords. The tenant urged that after the first petitioner retired from service, a registered lawyer notice was caused to another tenant - Sivasankaran Nair, who is in occupation of another room in the very same building, demanding surrender of possession of that room for the occupation of the first petitioner for conducting a business. It is contended that subsequently the dispute between the petitioner and Sivasankaran Nair was settled and Sivasankaran Nair had agreed to pay higher rent and that in this case also intention is to get enhanced rent. Even though the tenant contended that notice was issued to Sivasankaran Nair, it was denied by PW1. What the tenant contends is that she filed a petition directing the petitioner to produce certain documents one of which was the letter sent by petitioner to Sivasankaran Nair. In answer to that petition, petitioner merely stated that the document was not available with him. On the basis of this, it is contended that actually notice was issued. We are afraid that, that contention cannot be accepted. We went through the affidavit filed by the petitioner in I.A. No. 1831 of 1996. That petition was filed by the tenant. In that petition, the tenant had demanded the first petitioner to produce six documents. The fifth document was the copy of the letter sent by the petitioners to Sivasankaran Nair. A counter was filed to I.A. No. 1831 of 1996 by the first petitioner in which it was stated that he is producing documents which are in his possession. The contention urged by the tenant is that since it was not specifically denied that such letter was not sent, actually the letter was sent. Already we have referred to the deposition wherein the first petitioner has clearly denied that he has sent any notice to Sivasankaran Nair. The other contention raised was with regard to another room which was in the occupation of one Raghavan. According to the tenant, Raghavan was evicted and the room came to the possession of the landlords but they subsequently let it out to one Vasudevan. Regarding that the landlords submitted that one Raghavan was conducting a tailoring shop in one of the rooms and subsequent to his death they did not get vacant possession as the business was continued to be conducted by his brother-in-law. The appellate court rightly held that there is nothing to show that after the death of Raghavan the landlords got vacant possession. Hence the contention that landlord has other building is nt proved. Another contention raised was with regard to a room which was occupied by a person doing business in maxies. It has come out in evidence that it was let out ten years back.
5. The next question is whether the tenant is entitled to the benefit of second proviso to Section 11(3) of the Act. According to the tenant, she is depending for her livelihood on the income from the business conduct in the petition schedule room and that there is no alternate building to shift. So far as the income aspect is concerned, according to the tenant excepting for the business there is no other income. But in cross examination, it is brought out that tenant's husband has good income. According to us, even admitting that she is depending for her livelihood on the income from the business, it is not proved that no other building is available. It is admitted that other buildings are available, but she has stated that for getting other building, rent is higher and that huge amounts are demanded as pagidi. Excepting for the evidence of RW1, she has not given any other independent evidence to show that huge amounts are demanded as pagidi and rent for obtaining a building on rent. In this context we wish to state that counsel for the tenant has stated that nobody will come to that place and conduct business because it is a remote area. But, when the question of alternate accommodation is raised, it is contended that no other buildings are available. Learned counsel for the revision petitioner/tenant relied on the decision of the Division Bench in Krishnankurju Raveendran v. Sukumara Pillai, 1999 (3) KLT 373, wherein the Division Bench held that the vacant building available in the locality should be one within the reach f the tenant. For the simple reason that there are vacant buildings in the locality, the tenant cannot be denied of the protection. There this court has held\ that, the building constructed at a high cost with modern facilities suitable for running a star hotel or similar business need not or may not be a building suitable for running a petty tea shop and may not be available to the tenant as it may not be within the reach of the tenant. According to us, this decision is not applicable to the facts of the present case. Firstly because no evidence is given as to the nature of the alternate building available and secondly because it is not stated that the building available is not suitable for conducting the foot wear business. Further, the above decision has been explained in another decision of the Division Bench of this Court in Xavier v. Krishnakumari, 2000 (3) KLT 809, speaking for the Bench, Balasubramanyan, J.(as he then was) held as follows:
"The fact that the tenant will be forced to pay the rent that is commensurate with the rent now prevalent in the locality, is not a ground to deny the landlord an order of eviction under Section 11(3) of the Act on the ground that no suitable building is available to the tenant in the locality. The Rent Control Act does not contemplate that the landlord and the tenant should be pinned down to the state of thins as they were on the date of letting. What the court is called upon is to see whether on paying the current going rate of rent, any other building in the locality is available for the tenant to shift his business."
We agree with reasoning in the above decision. According to us, what the proviso contemplates in only whether the tenant will be able to shift to another building suitable for the business which is being conducted in the tenanted premises. Supposing a building was taken on rent about twenty years back on a rent of Rs. 20 the tenant cannot contented that no building is available for a rent of Rs. 20 and that, hence, there is no suitable building available. As rightly held by the Division Bench in Xavier v. Krishnakumari, 2000 (2) KLT 809 (supra), if buildings are available for the current market rate, then the tenant will have to shift to that building. The suitability is only with regard to the nature of the building, ie., whether it is suitable for the purpose of conducting business which was being conducted in the tenanted premises. As was found in Krishnankunju Raveendran v. Sukumara Pillai, 1999 (3) KLT 373 (supra), if the other available building is a very posh building, just like a three star hotel, it may not be reasonable to shift to that building to start a small business. In this case, the tenant has admitted that there are alternate buildings available, but tried to contend that huge amount is to be paid as pagadi. First of all, there is no independent witness to show that such pagadi was demanded. Even if, as a matter of fact, such amounts are demanded, we are of the view that it will not give the tenant the benefit of second proviso to Section 11(3) of the Act so long as other building is available.
6. In the above view of the matter, we do not find any illegality or irregularity in the order passed by the appellate authority. In view of the fact that revision petitioner is conducting a business in the petition schedule building, she is given two months time to vacate the building.
7. The C.R.P. is disposed of as above.