Kochummini Pillai Thankappan Pillai vs Parukutty Amma Sukumari Amma

K. Sreedharan, J.—This Civil Revision Petition is at the instance of the tenant who was the respondent in R. C. P. No. 1 of 1983 on the file of the Rent Control Court Attingal. The landlord sought recovery of the building on the ground of bona bile need for own occupation after re-construction. The Rent Control Court found against the plea u/s 11(3) of the Kerala Buildings (Lease and Rent) Control Act, 1965 (hereinafter referred to as the Act. On appeal by the landlord in R. C. A. No. 10 of 1983 the Appellate Authority by its judgment dated 14-6-1984 allowed eviction on the ground of bonafide requirement of the landlord. The tenant took up the matter in revision before the District Court Trivandrum in R. C. R. P. No. 32 of 1984. The learned District Judge by order dated 8-2-1985 confirmed the decision of the Appellate Authority and dismissed the revision petition. Hence this Civil Revision Petition at the instance of the tenant. On an earlier occasion the landlord sought to recover the petition schedule building by filing O. P. (B.R.C.) No. 10 of 1976 before the Rent Control Court, Attingal. The ground alleged there in Was bonafide need for own occupation of the building occupied by the tenant. That petition happened to be dismissed by the Rent Control Court on 15-7-1976. The appeal there from namely B. R. C. Appeal No. 11 of 1975 was also dismissed by the Appellate Authority by judgment dated 12-2-1977. On account of the dismissal of the earlier application u/s 11(3) of the Act, the learned counsel appearing for the petitioner submits that this petition filed by the landlord is one Section 15 of the Act. I am not in a position to agree with the learned counsel on this aspect of the case. As seen from Ext. B3 copy of the judgment in B R C Appeal No. 11 of 1975 the earlier application filed by the landlord was on the ground of own occupation of the building now in existence in the property. The building which is the subject-matter in that proceedings is a shop room. The landlord now does not want to occupy the existing building but she wants to have it demolished and a residential building put up for her residence. This need, according to me, is an entirely different one than the one pleaded in O. P. (B. R. C.) No. 10 of 1976. In this view this petition cannot be considered as one wherein the landlord has put forth a claim which is substantially the same as the one urged earlier. Therefore this petition is not one falling within the mischief of Section 15 of the Act.

The petition schedule building as stated earlier is a shop room in a row of rooms in a building. There are, in all, three shop rooms. Two rooms have already been got vacated from its tenants. Those two rooms are lying vacant. The third room which is in the occupation of the present petitioner is sought to be recovered so that the entire building can be demolished and a new residential house can be constructed. Ext. A7 certificate and Ext. A4 site plan show that the landlord has obtained necessary licence and plan for putting up the residential building From Ext. A4 it is seen that the proposed residential building is located covering a portion of the site in which the present building stands. In order to facilitate the said construction it is essential to have the existing building demolished. The landlord has categorically stated that she has got only the 7 cents of property in which the petition schedule building is situated for her to construct a residential building.

The landlord and her mother are now staying with her paternal uncle, father''s brother. Her father is now no more. She has her own family-She wants to put up a building of her own for staying with her family. This need that is put forth by the landlord is, according to the learned counsel appearing for the tenant-revision petitioner only a pretext to get the building vacated. I am not in a position to subscribe to the said argument advanced by the counsel. Sukumaran, J. in Secretary, Thevara Co-Operative Consumer Stores Ltd, v. Jose (1984 K. L. T. 290) observed thus:-

Long time back it has been recognised that the bride''s place is with the husband. Sankaran Nair, J. speaking on behalf on himself and Wall is, J. said so (see Surampalli Bangaramma v. Surampalli Brambaza, ILR 31 Madras 338): "Her home is in her husbands house". The fact that the landlord''s mother owns a house is no ground to deny the landlord the claim for the eviction of his own building. A feeling that one is under his own roof, and as of right is a comforting one duly recognised and protected by, law and legal institutions. Even if one need not be apprehensive that a close relation like a father or mother, brother or sister may not drive him out of the house owned by any of them, the need felt by the individual to have a separate establishment is a perfectly justified one. Quite often, in a house where young members grow and in course of time develop as small families, a necessity of one or more among them to seek alternative or additional accommodation is recognised by law.

I am in respectful agreement with the above observation. Every person should have a shelter and if he secures such a shelter with a close relation of his, it is not an equiation for saying that he is occupying a residential building of his own. The accent should not be on the payment of rent or non-payment of rent to the owner of the rooms which he is occupying but the accent should be on the fact whether the building in which he is residing or which he is occupying is his own or not. The building now occupied by the landlord belongs to the paternal uncle. It is in evidence that the petitioner was residing with her paternal uncle from her childhood and that her mother also stays with her uncle. Now she wants to have a building of her own for staying with the members of her family. She intends to put up a new building in the place where the building occupied by the revision petitioner is situated. This need urged by the landlord can be nothing but bonafide. This bonafide requirement of the landlord has been found by the Appellate Authority. It has been confirmed by the District Court in revision as well. I do not find any reason to upset that finding in exercise of my jurisdiction u/s 115 of the Code of Civil Procedure.

The next argument advanced by the learned counsel for the tenant-revision petitioner is based on the 2nd proviso to Section 11(3) of the Act. According to him the tenant is depending for his livelihood mainly on the income derived from the business carried on in the petition schedule building and that there is no other suitable building available in the locality for him to carry on his trade. The learned counsel submits that the landlord has not disputed the fact that the tenant is depending mainly on the income derived from the business in the petition schedule premises and that there is no other building available in the locality. Therefore, the learned counsel proceeds to argue that the court must take it that the ingredients of the 2nd proviso to Section 11(3) are satisfied in the case.

The landlord when examined as P. W. 1 was questioned about the income from the business. She was also asked whether according to her the tenant was depending mainly on the income from the business for his livelihood. She was further asked whether there was any building available close to the petition schedule building for the occupation of the tenant. She pleaded ignorance to all these questions. That plea of ignorance made by P. W. 1 in the witness box cannot take the place of evidence to be let in by the tenant who claimed the protection of the 2nd proviso to Section 11(3) of the Act. As per the decision reported in Kochappan Pillai v. Chellappan (1976 K. L. T. 1) the tenant who relies on the 2nd proviso to Section 11(3) has to prove all the facts mentioned in that proviso. It is the bounden duty of the tenant to prove that he is depending for his livelihood mainly on the income derived from the business carried on in the petition schedule building. To substantiate this case he Could have produced his account. No such evidence is adduced. When examined as D. W. 1 he states that he had enquired about the availability of the building only near the girls'' high school at Attingal. The petition schedule building is situated close to the girls'' high school. So the question that is to be considered is whether that enquiry which he is alleged to have made regarding the availability of building near the girls, high school will discharge the burden of proof as laid down in the decision reported in Kochappan Pillai v. Chellappan (1976 K. L. T. 1). The availability or non-availability of suitable building in the locality is one of the aspects that is to be established for claiming protection of the 2nd proviso to Section 11(3). When considering the meaning of locality, is it sufficient to show that buildings are not available in the adjoining properties? If buildings are available within a short distance from the building sought to be recovered, will it satisfy the requirement of the 2nd proviso?

As per the 1st proviso to Section 11(3) the landlord wilt not be entitled to claim recovery u/s 11(3) if he has another building of his own in his possession in the same city, town or village except on satisfying the court about the existence of special reasons A different phraseology is used by the Legislature in the 2nd proviso. The words used therein are "there is no other suitable building available in the locality for such person to carry on such trade or business". So "locality" in the 2nd proviso must be given a meaning other than city, town or village. Locality mast mean a lesser extent than an area. In common parlance locality can mean a ward in a local body like Municipality or panchayath or even a street. As per the Concise Oxford Dictionary 5th Edition "locality" means thing''s position, place where it is, site or scene of something. If this literal meaning is to be adopted then "building available in the locality" can only mean building in the very site where the present building is situated. This could not have been the intention of the Legislature while enacting the 2nd proviso to Section 11(3). Law Lexicon 3rd edition by Justice T. P. Mukherjee gives the meaning of locality as "locality" is a place with an area which is reasonably small and compact so that it has come to exist and be treated as one unit, a reference to which sufficiently identifies the area and the person therein. Ordinarily the unit has acquired a name by which it is referred and understood". Basing on decided cases it is further observed in the Lexicon as follows:-

The result is that ordinarily naming the village would amount to specifying the locality unless it is known in a particular case that the village specified is much too large to be treated as locality, there being smaller units within that village and having a name, which can be more appropriately called a locality. This would, therefore, be a question of fact in each case and where a village is specified in the notification u/s 4(1) of the said Act it would be presumed to be valid unless the person challenging its validity show that in fact the village named does not amount to specifying the locality on the fact and in the circumstances of that case.

From this it seems that the word ''locality'' must be understood as a compact area smaller than city, town or village but larger than the vicinity of. the building sought to be recovered.

Understanding the meaning of the word ''locality'' in the above manner, the enquiry stated to have been conducted by the tenant about the availability of buildings near the girls'' high school will not in any way discharge the duty cast upon him for claiming the protection under the 2nd proviso. The requirements of the 2nd proviso to Section 11(3) are rigorous and he has to establish them to the satisfaction of the conscience of the court. In the instant case the petitioner-tenant has not succeeded in establishing the ingredients of the 2nd proviso to Section 11(3). The Appellate Authority and the District Court in exercise of the revisional jurisdiction u/s 20 of the Act came to the conclusion that the tenant is not entitled to the protection of the 2nd proviso to Section 11(3) I find no ground to interfere with that finding in the nature of the evidence in this case, in exercise of my jurisdiction u/s 115 of the Code of Civil Procedure. The learned counsel for the revision petitioner raised yet another argument that the landlord has not obtained a valid licence for putting up a residential building in the property where the petition schedule shop room is situated and hence this petition for recovery of the building has to be dismissed. I find no merit in this argument either. Exts. A4 and A7 go to show that the landlord has obtained a valid licence and a plan for putting up a residential building in the plot where the petition schedule building is situated. They are not shown to have been issued in violation of any statutory provision.

In view of what has been stated above, I find no merit in this revision petition. It is accordingly dismissed. I make no order as to costs. The tenant-revision petitioner is given one month''s time from today to put the landlord in possession of the petition schedule building.