Francis v. Sreedevi Varassiar

The Judgment of the Court was delivered by

Jawahar Lal Gupta, C.J:— What is the true scope and ambit of the protection available to a tenant under the ‘second proviso’ to S. 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965? Have the courts below erred in granting protection to the respondents on the ground that a suitable building is not available to her in the locality? These are the two questions that arise for consideration in this Revision Petition which has been placed before the Full Bench. The facts may be briefly noticed.

2. On August 27,1974 the ground floor of the building in dispute was given on lease for a period of three months to the first respondent. The second respondent is her husband. The monthly rent was fixed at Rs. 350. The premises were given on lease for the purpose of conducting an agency of the Kottakkal Arya Vaidyasala. A copy of the lease deed is on record as Ext. A1. In the year 1980, the landlord filed a petition for the eviction of the respondents. It was inter-alia alleged that he needed the premises for bonafide personal occupation. It was alleged that the tenant was in possession of another building which was suitable for carrying on business as contemplated under S. 11(4)(iii). A copy of the plaint is Ext. A3. In this petition, the Rent Control Court had sustained the landlord's claim of bona fide need. However, it was held that in view of the second proviso to S. 11(3), the tenant was not liable to be evicted. Still further, it was found that the ingredients of S. 11(4)(iii) were not satisfied. Thus, the petition was dismissed. A copy of the judgment is on record as Ext. A-4. Both sides filed appeals. These were dismissed vide judgment at Ext.A-5. Even the revision petitions had met with the same fate.

3. On March 4,1992 the landlord again served a notice on the tenant indicating that he needed the premises for personal occupation. There were 15 buildings in the locality. The details of the buildings were given. These were available to the tenant. Thus, he called upon the respondents to vacate the premises. A copy of this notice is Ext. A-13 on the record. The tenant sent a reply to the notice through her counsel vide Ext. A-14. It was inter alia stated that out of the 15 buildings mentioned by the landlord, ‘several buildings’ were not vacant. More than 2000 sq.ft area was available in the premises in dispute. However, there was no other building with these facilities. Still further, it was also stated that the rent was 1.75 per sq.foot The other buildings were given on rent for Rs. 2,500/- to Rs. 3,000/- per month and Rs. 3 lakhs as deposit. There are no suitable rooms available in the shopping complex, which is under construction. Thus, the respondents were not liable to vacate the building. On receipt of the reply, the landlord filed a petition for the eviction of the respondents in March 1992. The provisions of S. 11 (3) were inyoked. It was inter alia alleged that the landlord was a qualified doctor. He needed the premises for setting up his practice.

4. The tenant resisted the claim on the ground that the need of the landlord was not bonafide. The respondents also claimed protection under the second proviso to S. 11(3) of the Act.

5. The landlord's petition was decided by the Rent Control Court vide its judgment dated November 26, 1993. It was found that the need of the landlord was bonafide. However, the tenants’ claim for protection under the second proviso to S. 11(3) was sustained. Thus, the petition was dismissed. Both sides filed appeals. These were disposed of by a common judgment by the appellate court vide order dated July 9, 1998. Both the appeals were dismissed. Aggrieved by the judgment, the landlord has filed the present revision petition.

6. The petition was posted for hearing before a Division Bench of this Court, Counsel for the parties had argued the matter and referred to certain decisions. In particular, it was pointed that in Varkey v. Raman Pillai (1981 KLT 213) and Krishnankunju Reveendran v. Sukukumara Pillai (1999 (3) KLT 373) the court had taken the view that if the rent for the alternate building was exorbitant, the protection under the second proviso could not be denied to the tenant. On behalf of the landlord, reference was made to the decision in Xavier v. Krishnakumari (2000 (3) KLT 809) wherein it was held that the rents having gone up, the tenant was required to pay at the prevalent rate consistent with the economic situation now obtaining. Feeling that there was a conflict in the judicial opinion, the case was referred to a Larger Bench. This is how the matter has been placed before this Bench.

7. Mr. S.V.S Iyer learned counsel for the petitioner, contended that under the Act the burden of proving that a suitable building was not available in the locality was on the tenant. The respondents had failed to discharge the burden. The evidence on record clearly proves that a suitable alternate accommodation was available. Thus, the courts below had erred in rejecting the petitioner's claim. On the other hand, Mr. T.R Ravi, learned counsel for the respondents, had contended that a concurrent finding of fact upholding the claim of the respondents had been recorded by the courts below. In the exercise of revisional jurisdiction, this Court should not re-appreciate the evidence. Thus, the revision petition was liable to be dismissed. Learned Counsel for both sides referred to various decisions in support of their respective contentions.

8. It is in the background of the above facts and contentions that the questions as posed at the outset arise.

9. Firstly, we may deal with the true ambit and scope of the second proviso to S. 11(3). Inevitably, a reference to the provisions of the Act is essential.

10. The Act was enacted “to regulate the leasing of buildings and to control the rent of such buildings in the State of Kerala.” It has been periodically amended. The grounds on which a tenant can be evicted are embodied in S. 11. Cl. (3) of S. 11 is relevant for the purpose of the present case. It would be apt to notice it in extenso. It provides as under.

“11(3): A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him;

Provided that the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular case it will be just and proper to do so:

Provided further that the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business:

Provided further that no landlord whose right to recover possession arises under an instrument of transfer inter vivos shall be entitled to apply to be put in possession until the expiry of one year from the date of the instrument:

Provided further that if a landlord after obtaining an order to be put in possession transfers his rights in respect of the building to another person, the transferee shall not be entitled to be put in possession unless he proves that he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him.”

11. A perusal of the above provision shows that the Statute recognizes the right of a landlord to get possession of the building if he needs it for his own occupation or for the occupation of any member of his family dependent on him. The need has to be bona fide. The provisos carve out the exceptions to the rule contained in the main provision. By virtue of the first proviso, the landlord is disentitled to claim the eviction of a tenant if he has another building in the same city, town or village. An exception can be made only if, for ‘ special reasons’. However, even this too is permissible only when it is found that ‘it will be just and proper to do so.’ In view of the fact that both the courts have recorded a finding in favour of the landlord regarding his bona fide need, it is not necessary to examine the main provision any further. However, the real controversy centers around the second proviso. The ambit and scope of this provision is the central issue in the case.

12. A perusal of the second proviso shows that it carves out an exception to the rule that the landlord can evict a tenant for bonafide need. It provides a protection to the tenant despite a finding that the need of the landlord is bona fide. The Rent Control Court cannot direct the tenant to handover possession of the premises to the landlord, if the ingredients of the second proviso to the main provision are satisfied. What are the necessary facts, which have to be proved, before the court? These are:

(i) That the tenant is dependent on the income derived from the trade or business carried on in the building in dispute for his livelihood; and

(ii) that there is no other suitable building available in the locality for such person to carry on the trade or business he is engaged in.

13. In other words, the tenant is entitled to stifle the claim of the landlord for possession of the premises if he proves the aforesaid two facts. The provision provides that the court should refuse to evict the tenant if it is found that he is dependent for his livelihood on the trade and business which he is carrying on in the demised premises and that no other ‘suitable’ accommodation is available to him in the locality. The obvious purpose of this provision is to save him from starvation. If this be the objective, can the economic considerations be wholly irrelevant while determining the suitability of the alternative accommodation? This issue represents the core of the controversy in the present case.

14. During the course of arguments, it was initially sought to be contended by the learned counsel for the respondents that in view of the ‘negative’ language of the Statute, the onus of proving the factual position regarding the issues involved under the second proviso was on the landlord. However, Mr. Iyer referred to a catena of decisions to controvert this contention. It was pointed out by the learned counsel that the matter had been considered by a Division Bench of this Court in Kochappan Pillai v. Chellappan (1976 KLT 1). In this case, it was clearly held in paragraph 8 that “the burden of proving all the facts in the second proviso to S. 11(3) of the Act is on the tenant.” This view has been consistently followed in the subsequent decisions reported in Gouthami v. Indira Kunjamma (1994 (2) KLJ 201), Krishnankunju Raveendran v. Sukukmara Pillai (1999 (3) KLT 373) and Varghese Eapen v. Varghese (2001 (2) KLT 263). The view has been consistent.

15. In view of the above-noted factual position, it does not appear to be necessary to examine the issue in detail. It may only be observed that the proviso being an exception to the rule embodied in S. 11(3), the necessary facts have to be proved by the party who invokes it. In principle, the person who seeks the protection under the provision must prove the relevant facts. Thus, we fully concur with the reasons recorded by the Division Bench in Kochappan Pillai's case (supra) and hold that the onus of proving the relevant facts as embodied in the second proviso lies on the tenant. This, however, is not the end of the matter.

16. The controversy centers on the second part of the proviso. It relates to the availability of a ‘suitable’ building in the locality. What is the true import of the word ‘suitable’? According to Black's Law Dictionary (6th Edition), ‘suitable’ means “fitand appropriate for the end in view.” If this were taken as the yardstick, the provision would simply mean that the building should be appropriate for continuing the trade or business by the tenant. In other words, he should be able to carry on the same activity (business or trade) in the new building, which he was engaged in, prior to his eviction.

17. Mr. Iyer contended that the word ‘suitable’ should be given a restricted meaning. The benefit of the proviso should be given to the tenant only if it is found that he would not be able to carry on the business in the alternate accommodation. The consideration of rate of rent is wholly irrelevant.

18. If the provision were to be literally construed, the contention may be well founded. However, one of the accepted norms of interpretation of statutes is that the judicial construction should promote the object of the statute. The proviso, which carves out an exception to the general rule, can be given a restricted meaning. Yet, such meaning should not defeat the object of the provision. In a given case, it can happen that a person is carrying on a small tea stall in the particular premises. The landlord may need those premises bonafide. He may also be able to show that an alternative accommodation is available. But such an alternative accommodation may be in a big cinema hall where a shopping arcade has been constructed or in a posh shopping complex. The accommodation in the alternative premises may be totally beyond the means of the tenant. In such a situation, it may be wholly unfair to hold that a suitable alternative accommodation is available. The economic factor cannot, thus, be wholly irrelevant.

19. This would not, however, mean that the tenant is entitled to insist that the premises should be available to him at the same rate of rent at which he had taken the original building on lease many years back. Inflation and fall in value of money are a reality of our times. The prices of every commodity have gone up. Even a cup of tea costs more than what it used to. Thus, while considering the question of the rate of rent, the tenant cannot insist upon an equivalent figure. He cannot say that ‘I had taken the original premises in the year 1974 at Rs. 350 P.M I must get the new building for the same or a similar amount.’ In view of this factual position, it would be fair for the court to examine as to what would be the present rate of rent of the premises, which are in occupation of the tenant. If the alternative premises are available at a similar rate, the tenant shall not be entitled to say that the building is not suitable. In other words, it would mean that if the rent of the alternative premises available in the locality is nearly the same as the old premises in occupation of the tenant would fetch at the time the claim for eviction is made, the plea of the tenant based on the second proviso shall not be available to him.

20. Mr. Iyer referred to the decisions of the Division Bench in Krishnankunju Raveendran v. Sukukmara Pillai (1999 (3) KLT 373), Xavier v. Krishnakumari (2000 (3) KLT 809), Eliyamma Chacko v. Shameem Beegum (2001 (1) KLJ 268), Varghese Eapen v. Varghese (2001 (2) KLT 263), Koinalam v. Mohammed (2002 (1) KLT 284), Kuhiraman Nair v. Madhavi (2002 (2) KLT 10) and Mohammedkutty v. Janaki (2002 (3) KLT 811). We have perused these decisions. On an examination thereof, it appears that in none of these cases the court has gone to the extent of saying that the financial capability of the tenant is wholly irrelevant. The slightly discordant note recorded in Xavier's case 2000 (3) KLT 809 is only indicative of the fact that the tenant cannot insist upon the rent of the new premises being an exact or mathematical equivalent of the original figure. There is no quarrel with this proposition. However, what appears reasonable to us is that the rent of the alternative premises should be nearly the same, as the old premises in his possession would fetch at the time of his eviction.

21. Another fact, which deserves mention, is that India is facing a continuing rise in population. While the numbers are growing, the habitable area remains almost constant. Resultantly, there is a paucity of land. The prices are going up. Big bungalows and shops are becoming a matter of the past. We are shifting from big houses to flats. Equally, even the area available for commercial use is shrinking. This reality cannot be ignored while considering the availability of suitable accommodation. Thus, even if the area as available to the tenant is less than what is in his possession, it would not be possible to say that he is not liable to be evicted. The only test should be - Would he able to carry on his original activity reasonably? Would the premises be appropriate for his business or trade? If the answer is in the affirmative, the tenant's plea shall not be sustained. The courts shall not insist upon a physical equivalence of the area.

22. In view of the above, it appears fair to say that the second proviso carves out an exception to the rule embodied in S. 11 (3). The burden of proving the relevant facts lies on the tenant. The tenant has to prove that he is dependent on the income from the trade or business being carried on by him in the premises in dispute for his livelihood. He is to further prove that a suitable alternative accommodation is not available. While adjudging the suitability of the alternative accommodation, the court shall not insist upon a mathematical equivalence of the area or rent. The only thing that the court has to see is that the tenant should be able to carry on his existing activity in the new premises. The area may even be less. Still further, the rent should be almost equal to that which the premises in dispute would fetch at the relevant time. Truly, it is not possible to visualise all situations. It may happen that a building as old as that occupied by the tenant is not available. The rent for the new building is likely to be higher. In such a situation, the court shall be entitled to consider - Can the tenant pay the higher rent? Can he do his business in a lesser area? The mere fact that the rate of rent is higher shall not be enough. The relief shall be denied to the landlord only when it is found that the tenant cannot under any circumstances pay for or carry on his business in the new premises.

23. This brings us to the consideration of the second question - Have the courts below erred in taking the view that the tenant was entitled to the protection of the second proviso? In other words, the question is - Have the respondents discharged the onus imposed on them by law?

24. Mr. Iyer contended that the language of S. 20 does not place any embargo on the jurisdiction of the court. The court can interfere despite the fact that a concurrent finding has been recorded in favour of the tenant. On the other hand, it was contended by Mr. T.R Ravi, the learned counsel for the respondents that re-appreciation of evidence is not permissible. Both sides have referred to various decisions.

25. First of all, the provision as contained in S. 20 may be noticed. It provides as under:

“20. Revision:-

(1) In cases where the appellate authority empowered under S. 18 is a Subordinate Judge, the District Court, and in other cases the High Court, may, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceedings taken under this Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings, and may pass such order in reference thereto as it thinks fit.

(2) The costs of and incident to all proceedings before the High Court or District Court under sub-s.(l) shall be in its discretion.”

26. A perusal of the above provision shows that while exercising the power of revision, the court can call for and examine the records. An examination of the records shall, in the very nature of things, include the evidence adduced by the parties. The provision further provides that while examining the records the court has to satisfy itself with regard to the legality, regularity and propriety of the order. Thereafter the court is competent to pass such order as it thinks fit.

27. Mr. Ravi contended that a re-appreciation of the evidence is not permissible. He referred to the decisions in P. Kesavan v. Ammukutty Amma ((1988) 1 SCC 202 : AIR 1988 SC 339), Rukmini Amma v. Kallyani Sulochana ((1993) 1 SCC 499 : AIR 1993 SC 1616) and Vallampati Kalavathi v. Haji Ismail. ((2001) 4 SCC 26).

28. There is no quarrel with the proposition as enunciated in these cases. However, what deserves notice is that the provision of S. 20, as reproduced above, has been recently considered by Their Lordships of the Supreme Court in Nalakath Sainuddin v. Koorikadan Sulaiman. ((2002) 6 SCC 1). Resultantly, it is not necessary to examine the matter in detail. In paragraph 17 of the judgement, the conclusion regarding the scope and ambit of the provision has been recorded in the following words:

“We agree with the view taken by the High Courts of Madhya Pradesh and Madras. We are of the opinion that:

(i) There is no reason to read and interpret S.20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 narrowly and limit the scope of revisional jurisdiction conferred on the High Court thereby.

(ii) Once a revision petition is entertained by the High Court, whichever be the party invoking the revisional jurisdiction, the High Court acquires jurisdiction to call for and examine the records of the authority subordinate to it. The records relating to “any order” and/or any proceedings, are available to be examined by the High Court for the purpose of satisfying itself as to the (a) legality, (b) regularity, or (c) propriety of the impugned order, including any part of the order, or proceedings. The only limitation on the scope of the High Court's jurisdiction is that the order or proceedings sought to be scrutinized must be of the subordinate authority. Any illegality, irregularity or impropriety coming to its notice is capable of being corrected by the High Court by passing such appropriate order or direction as the law requires and justice demands.

(iii) “Any aggrieved party”, the expression employed in S. 20(1), means a person feeling aggrieved by the ultimate decision, that is the operative part of the order. A party to the proceedings, who has succeeded in securing the relief prayed for, is not a party aggrieved though the order contains a finding or two adverse to him. The respondent can support the order and pray for the ultimate decision being sustained, without filing a revision of his own, and for achieving such end he may seek reversal of any findings recorded against him. However, if the non-petitioning party feels entitled to a more beneficial or larger order in his favour but was allowed a lesser or smaller relief then to the extent of claiming the more beneficial or larger relief he should have filed a revision petition of his own as he was “an aggrieved party” to that extent.”

29. In view of the above, it is clear that the provision has not to be narrowly construed. The scope of revisional jurisdiction of the High Court has not to be unnecessarily limited on the basis of technicalities. The court has to consider and decide the matter as the justice of the cause may demand.

30. It is, in view of the above principle that the factual position in the present case has to be considered. What have the Courts below found? The appellate court has held that the area, which is actually in occupation of the respondents, is 1655.1 sq.ft It has also been noticed that an area of 1250 sq. ft in the alternative premises was available. Despite that it has been held that suitable accommodation is not available.

31. It is true that both the courts below have found that the respondents are entitled to the protection of the second proviso. However, the issue is - Have the Courts considered the relevant facts and the evidence? Do the orders promote justice?

32. The evidence in the present case consists of the oral testimony and the documents produced by the parties. First of all, the documentary evidence may be noticed. The first relevant document is the notice dated March 9,1992 issued on behalf of the landlord to the respondents. A perusal of the notice shows that the landlord had given a list of 15 buildings to the respondents. He had categorically stated that these buildings were vacant and available for being taken on lease. He had also stated that ‘some shopping complex’ s construction work is completed in the locality and rooms are available in the above shopping complex also.’ In particular, he had pointed out that ’23 rooms in the ground floor and 2000 sq.ft in the first floor’ were available in ‘Chalakudy Municipal Shopping Complex and Bus Stand building.’ He had also given particulars of the other accommodation available in the locality. The tenant had sent a reply and stated that ‘out of the 1 to 15 buildings stated in the notice, several building are not vacant… the owners of the vacant buildings were not ready to let out for rent. Moreover, several of the buildings are not suitable to conduct the Vaidya Sala.’ She had further stated that ‘more than 2000 sq.ft area is available in the building … There is no other building available in the Chalakudy Municipality with the above facilities and business prospects. She had gone on to add that the rent in the Municipal Shopping stall was at the rate of Rs. 1.75 per sq.foot, The other buildings were given for rent of Rs. 2,500 or Rs. 3,000 per month with Rs. 3 lakhs as deposit. There are no suitable rooms available in the Shopping Complex which is under construction.

33. On an examination of her reply, it is clear that she did not mention as to which building was not vacant. Who had refused to let out the building? In fact, it appears that she had intentionally given a vague reply. The real reason, it appears, was that the rent of the new premises was in the region of Rs. 2,500 to Rs. 3,000 per month. Thus, excuses were sought to be made out to defeat the claim of the petitioner.

34. The third document is the report submitted by the Advocate Commissioner. He had given details regarding the building in occupation of the respondents and also about the available accommodation. In particular, he had stated that the respondent was in occupation of a building in dispute with an area of 2058 sq.ft on the ground floor. With regard to the list of properties given by the landlord in his notice dated March 9,1992, he had stated that one of the buildings had ‘an area of approximately 1250 sq. ft.’ He had also given details regarding the other premises. On a perusal of the report, we find that actually accommodation in different sizes was available.

35. So far as the oral testimony is concerned, it consists of the statement of three witnesses, viz., the petitioner and two others. On the other side, the first respondent and the Controller of Accommodation had appeared. The landlord had appeared as P.W 1. He had clearly reiterated the factual position. This was corroborated by P.W 2, the Municipal Commissioner of Chalakudy. He had given details regarding the available accommodation.

36. We have examined the statement of the first respondent. There is nothing to indicate that she had any complaint regarding the available area except the ‘pure water supply.’ Her allegation was that ‘the water supply by the Municipality cannot be used for medicines. It will contain chlorine.’ This was not a valid ground. She has only an agency for the medicines manufactured at the Kottakkal Arya Vaidyasala. She had not taken the premises for running a pharmacy. Nor was such a plea raised in the written statement. Still further, she had no complaint that the available accommodation was not ‘suitable’ as fresh air etc. were not available.

37. Mr. Ravi referred to the report of the Advocate Commissioner. So far as this aspect of the matter is concerned, it may be mentioned that the Commissioner had appeared as P.W 3. He had admitted that he knew the respondent personally. His words are - ‘She was a neighbour staying next to my house. I know her for about five years. ‘As against this, the first respondent in her statement as D.W 1, took the position that’ the Commissioner is not my neighbour.’ It appears that she has no regard for truth. Furthermore, she primarily asserted that the Municipality was charging monthly rent at the rate of Rs. 1.5 per sq. foot. In another place, the rent was Rs. 2,000 per month along with deposit. Her statement would clearly show that she was reluctant to shift only on account of the fact that the rate of rent was Rs. 1.5 per sq. foot.

38. The matter may be considered on the assumption that she is right in asserting that the rate of rent for the Municipal premises, which were available, was in the region of Rs. 1.5 per sq.foot What would be the rent for the premises in dispute on this basis?

39. The Court has found as a fact that the area in her possession is 1655.1 sq. feet. At the rate of Rs. 1.5 per sq. foot, the present rent for the area in her occupation should be about Rs. 2,500. During the course of her statement, she admitted that the alternative accommodation was available for Rs. 2,000. However, she asserted that there was a demand for a deposit of Rs. 2 lakhs. Who had made the demand? For which building? Learned counsel for the respondent conceded that there is no evidence, except her ipse-dixit, to show that there was really a demand for deposit. In fact, the accommodation belonging to the Municipality was available. No deposit of any kind was required.

40. In view of the above, it is clearly established that accommodation was available in various buildings. Even the courts below have recorded a firm finding of fact that an area of 1250 sq. ft was available. Still further, it cannot be said that the rent being demanded for the alternative accommodation was too excessive.

41. On an examination of the matter, we find that the courts below had failed to take into consideration relevant evidence. A finding that certain rooms did not have windows etc. has been recorded without even the respondent having made such a claim.

42. Thus, the available accommodation has been dubbed as unsuitable. Admittedly, the premises had been let out for agency business in medicine/drugs manufactured by the Kottakkal Arya Vaidyasala. According to the first respondent, her husband was assisting her in the business. He was also giving treatment. Assuming it to be so, nothing was brought on record by her either in her own statement or otherwise to show that an accommodation of 1250 sq. feet was not enough for her to carry on the present business. The Court has only observed that the Commissioner had found that the vacant accommodation was ‘unsuitable for the business of the first respondent.’ There is no evidence that these rooms have sufficient windows to get free air for the patients who are treated in the clinic. It was also observed that ayurvedic clinic and pharmacy cannot be run in watertight compartments like the rooms in the shopping complex. Is it so? The observations are clearly based on conjectures. Learned Counsel for the respondents was not able to refer to anything from the statement of the witnesses in this behalf. Thus, the findings cannot be sustained.

43. Even in equity, we find that the claim of the petitioner deserves to be sustained. In the year 1980, he had claimed the eviction of the respondents on the ground of bona fide personal need. The claim of bona fide need was upheld by the courts. In the second round of litigation, again a categorical finding has been recorded that the landlord's need was bonafide. He required the premises to carry on his own medical practice. Still further, the respondents had not shifted merely because the rate of rent was more than what they were paying at present. This is highly inequitable and unfair. It is unjust. The tenant has remained in occupation of the premises for a paltry sum of Rs. 350 per month for more than 28 years and she is avoiding eviction on the ground that the rent for new premises is about Rs. 2000. After all, she is only a tenant and not the owner. Surely, it would not be just to deny the owner the use of his own building.

44. In this context, it deserves mention that while construing the provisions of a “social legislation, like the Rent Control Act, the law must strike a balance between rival interests and it should try to be just to all. The law ought not to be unjust to one and give a disproportionate benefit or protection to another section of the society.” The rule in this behalf was laid down by the Apex Court in Malpe Vishwanath Acharya v. State of Maharashtra ((1998) 2 SCC 1). In view of the above, it is held that:

1. The second proviso carves out an exception to the rule embodied in S. 11(3). The burden of proving the relevant facts lies on the tenant. The tenant has to prove that he is dependent on the income from the trade or business being carried on by him in the premises in dispute for his livelihood; He is to further prove that a suitable alternative accommodation is not available.

2. While adjudging the suitability of the alternative accommodation, the court shall not insist on a mathematical equivalence of the area or rent. The only thing that the court has to see is that the tenant should be able to carry on his existing activity in the new premises. The area may even be less. Still further, the rent should be almost equal to that which the premises in dispute would fetch at the relevant time. It may happen that a building as old as that occupied by the tenant is not available. The rent for the new building is likely to be higher. In such a situation, the court shall be entitled to consider Can’t the tenant pay the higher rent at all? Can he do his business in a lesser area? The mere fact that the rate of rent is higher shall not be enough. The relief shall be denied to the landlord only when it is found that the tenant cannot under any circumstances, pay for or carry on his business in the new premises.

3. The provision contained in S. 20 has not to be narrowly construed. The scope of revisional jurisdiction of the High Court has not to be unnecessarily limited on the basis of technicalities. The court has to consider and decide the matter as the justice of the cause may demand.

4. In the facts and circumstances of the present case we find that the courts below had erred in holding that suitable alternative accommodation was not available and that the tenant was entitled to the protection of the second proviso of S. 11(3). Thus, the decision cannot be sustained.

5. Even while construing the provision of a social legislation like the one in the present case, a balance must be struck between the rights of the contending claimants so that the provision does not attract the criticism of being arbitrary.

45. Resultantly, the Revision Petition is accepted. The judgment of the courts below are set aside, The Revision Petition is allowed.